* it 


'A 


SUPPLEMENT 


TO  THE 

NOTES  ON  THE  RUBRICS. 


•oOo- 


PENANCE  AND  MATRIMONY. 


SUPPLEMENT. 

— ooo — 

ON  THE  SACRAMENT  OF  PENANCE  : “ DE  SACRAMENTO 
PCENITENTIiE.” 

Cum  igitur  poenitentem  absolvere  voluerit,  injuncta  ei  prius,  et  ab  eo 
acceptata  salutari  poeniteutia,  primo  dicit:  Misereatur  tui  omnipotens 
Deus,  et  dimissis  peccatis  iuis,  perducat  te  ad  vitarti  cBternam.  Amen, 

981.  The  rubnc  prescribes  that  the  confessor  impose  the 
sacramental  penance  before  he  gives  absolution.  It  can 
rarely  happen,  unless  the  penitent  be  ‘‘  in  articulo  mortis/^ 
that  there  is  sufficient  reason  for  acting  otherwise.  Theo- 
logians, however,  commonly  teach  that  the  penance  may  be 
imposed  after  absolution.  (Vid.  Lig.,  lib.  vi,  nn.  514-8  iti 
parenth.)  There  is  no  doubt  that  it  will  have  the  same 
sacramental  effect  whether  it  is  imposed  before  or  after  abso- 
lution ,*  and,  therefore,  the  confessor,  if  he  forgets  to  impose 
it  before  absolving,  should  take  care  to  impose  it  immediately 
after.  (Gury,  vol.  ii,  n.  523.)  It  is  in  accordance  with  the 
judicial  order,  which  should  here  be  followed,  that  the  pen- 
ance be  imposed  and  accepted  before  the  penitent  is  absolved 
and  as  the  rubric  prescribes  this  order,  it  cannot,  we  think, 
be  looked  on  as  merely  directive.  The  confessor  is  clearly 
bound  to  follow  it,  unless  there  be  some  reasonable  cause  for 
acting  otherwise.  He.  may  be  easily  excused,  however,  by 
inadvertence,  especially  when,  after  hearing  the  confession, 
he  spends  some  time  in  giving  advice  and  direction. 

It  is  certain  that  the  mere  inversion  of  the  order  is  not  in 
any  case  a grievous  sin  ; and  some  even  hold  that  the  confes- 
sor may,  without  any  fault,  defer  the  imposition  of  the 
penance  until  after  the  absolution,  when  he  fairly  presumes 
that  the  penitent  is  willing  to  accept  it.  (Gury,  n.  523.) 

982.  “ Misereatur  tui,”  etc.  This  prayer  is  to  be  said 
always  in  the  singular. 


476 


ON  THE  SACRAMENT  OF  PENANCE. 


Deinde  dextera  versus  poenitentem  elevata,  dicit  : Indulgentiam, 
absolutionem,  et  remissionem  peccatorum  tuorum  tribuat  tihi  omnipotem 
et  miscricors  Dominus.  Amen. 

Dominus  noster  Jesus  Christus  te  dbsolvat;  et  ego  auctoritate  ipsius  tt 
ahsolvo  ah  omni  vinculo  excommunicationis,  suspetisionis,  et  interdicti,  in 
quantum  possum,  et  tu  indiges. 

The  priest  is  directed  to  raise  his  right  hand  towards  the 
penitent  while  pronouncing  the  words,  Indulgentiam ^ etc. 
It  was  the  practice  in  many  places  to  raise  the  hand  over, 
and  even  to  place  it  on,  the  head  of  the  penitent.  This  was 
in  fact  the  usage  of  the  Church  for  many  ages  (De  Herdt, 
204 — CataL),  and  it  is  permitted  by  the  ritual  of  Mechlin, 
where  the  confession  is  heard  extra  sedem  confessionalem.’^ 
(De  Herdt.) 

Considerable  latitude  is  admitted  in  interpreting  the  ex- 
pression, even  when  the  ceremony  which  it  .implies  is  neces- 
sary to  the  validity  of  a sacrament.  Still  greater  latitude 
may  easily  be  admitted  when,  as  in  the  present  case,  the 
ceremony  does  not  in  any  way  affect  the  validity  of  the 
sacrament.  It  is  not  improbable,  therefore,  that  the  ini- 
^•positio”  prescribed  by  the  ancient  rituals  was  often  little  in 
practice  more  than  the  raising  of  the  hand,  as  prescribed  by 
the  present  rubric. 

983.  Bat  in  the  confessional  as  now  constructed,  the  priest 
can  do  no  more  than  raise  his  hand  towards  the  penitent.  It 
is  recommended,  however,  that  the  priest  do  so,  by  directing 
the  palm  rather  than  the  little  finger  towards  the  penitent,  so 
that  the  ceremony  may  approximate  more  to  the  literal 
^^impositio  manus”  which  was  formerly  in  use.  (De  Herdt, 
^id})  He  keeps  the  hand  in  this  position  until  he  has 
pronounced  the  words.  Ego  te  ahsolvo  a peccatis  tuis.  He 
then  makes  the  sign  of  the  cross,  as  if  blessing  the  penitent, 
while  he  says,  “ In  nomine  Patris  et  Filii,’^  etc. ; and  for 
tliis  purpose  he  turns  his  hand  so  as  to  direct  the  little  finger 
towards  the  penitent. 

984.  It  is  the  common  opinion  of  theologians  that  the 
essential  form  of  the  sacrament  is  found  in  the  words,  ‘‘  absolve 

te.”  (St.  Lig.,  430,  Dub.  1.)  This  may  be  inferred  from  the 
Council  of  Trent  (Sess.  14,  cap.  3),  and  from  the  Catechism  of 
the  Council  (p.  ii,  n.  14  : Est  autem  forma.  Ego  te  ahsolvo). 
Some,  however,  maintain  that  the  words,  a peccatis  tuis,” 
are  also  essential,  while  all  are  agreed  that  it  would  be  a 
mortal  sin  to  omit  thorn. 


ON  THE  SACRAMENT  OF  PENANCE. 


477 


985.  The  forms  given  by  the  most  ancient  rituals  are  in- 
variably found  to  contain  the  foregoing  words,  although  not 
always  in  juxtaposition  as  we  have  them  here. 

The  words,  ‘^In  nomine  Patris,”  etc.,  are  certainly  not 
essential,  but  it  is  commonly  held  that  the  omission  of 
them  would  be  a venial  sin.  (St.  Lig.,  1.  c..  Dub.  3.) 

We  find  them  sometimes  mixed  up  with  the  words  of  a 
long  prayer,  in  which  several  words  intervened  between  a 

peccatis  tuis  and  in  nomine  Patris,”  etc.  (Oatal.,  page 
229.) 

Deinde,  Ego  te  absolvo  a peccatis  tuis,  in  nomine  Patris,  et  Filii,  et 
Spiritus  Sancti.  Amen. 

986.  The  word  deinde  is,  in  some  editions  of  the  Pitual, 
printed  in  rubric  type,  and  in  others  in  the  same  type  as  the 
words  immediately  before  and  after  it.  A question,  there- 
fore, has  been  raised  whether  the  priest  should  regard  it  as 
part  of  the  text,  and  say  . . . et  tu  indiges.  Deinde  ego  te,^^ 
etc.,  or  look  on  it  simply  as  a rubric,  and  say  . . . ‘^  et  tu  indiges. 

Ego  te,”  etc.  The  question  was  proposed  by  the  Bishop  of 
Verona  to  the  Congregation  of  Rites  in  the  following  form: 

Utrum  in  forma  absolutionis  verbum  Deinde,  in  nonnullis 
^‘editionibus  rubro  charactere  impressum,  omittendum  sit?” 
and  the  Sacred  Congregation  answered  simply,  Nihil  in- 
^^novandum.”  (Veronen.,  ll  Martii,  1837.)  The  same  answer 
was  sent  some  years  afterwards  to  a priest  of  Vigevano,  who 
proposed  the  same  question.  (Vigevanen.,  27  Febr.,  1847.) 
The  meaning  of  this  answer,  however,  is  not  very  clear,  for 
it  may  still  be  doubted  which  is  the  innovation — the  use  or 
the  omission  of  the  word.  The  vote  of  the  consultor  might 
clear  up  the  point  j but,  this  not  being  published,  the  ques- 
tion to  a great  extent  resolves  itself  into  one  of  accuracy  and 
authority  as  between  different  editions  of  the  Ritual. 

987.  PTere  is  no  doubt  that  recent  editions  of  the  Ritual 
printed  in  Rome  have  the  word  in  rubric  type.  PTe  latest 
Propaganda  edition  has  it  so  printed.  Now,  there  is  a strong 
presumption  that  in  this  edition  the  word  is  correctly  printed, 
not  only  on  account  of  the  careful  supervision  to  which  books 
— especially,  liturgical  books — printed  at  the  Propaganda  are 
subjected,  but  also  because  particular  attention  would  most 
probably  be  directed  to  the  printing  of  this  very  word  on 
account  of  the  controversy  raised  about  it.  Hence,  we  find 
that  those  who  touched  on  the  question  within  the  past  few 


478 


ON  THE  SACRAMENT  OF  PENANCE. 


years,  as  Balles^ini  (Annot.  ad  Gary  De  Poenitcnliaj  n.  42C), 
and  A^avasseur  (Du  Sacreinent  de  Penitence,  n.  101,  note), 
are  inclined  to  regard  the  word  as  a rubric.  Barutfaldi  is 
often  cited,  amongst  others,  by  Vavasseur  (loc.  cit.),  as  hold- 
ing this  view,  but  he  seems  to  us  to  hold  the  opposite.  He 
says,  indeed,  that  ‘‘  deinde  ” does  not  belong  to  the  substance 
of  the  form  in  such  a way  that  without  it  the  absolution 
would  be  null  j but  he  is  far  from  saying  or  implying  that  it 
is  not  to  be  pronounced  by  the  priest,  since  he  concludes  by- 
recommending  in  practice  the  opinion  of  Nicole:  ^^Hiquutn 
“esse  pronunciari  tale  verbum.”  “ Quaerunt  nonnulli,”  he 
says,  “inter  quos Nicolius,  Flosc.,  (Verb.  Ahsolutio),  et  Sar- 
“ nell  {Epist.,  Eccl.  tom.  4,  ep,  42),  an  adverbium  illud  deinde 
“ sit  necessario  pronunciandum  in  forma  absolutionis  adeo 
“ ut,  eo  verbo  praetermisso,  absolutio  sit  invalida.  Nicolius 
“ respondet  aequum  esse  pronunciari  tale  verbum  ; Sarnellus, 
“ vero,  posse  stare  absolutionem  licite  et  vaiide  opinatur  abs- 
“ que  tali  verbo.  In  tali  dubio  quid  resolvendum  f Quicquid 
•“  sibi  libuerit  aget  confessarius,  adverbium  enim  illud  non  est 
“ de  substantia  formae  absolutionis : tutiorem  opinionem 
“ crederem  illam  Nicolii.” 

988.  Oatalani  expressly  rejects  the  opinion  that  the  word 
belongs  to  the  rubric,  and  insists.  ..  “adverbium  illud 
“ deinde,  quod  eodem  charactere  exaratum  absolution!  pecca- 
“ torum  immediate  praemittitur,  ut  in  nostro  § II  videre  est, 
“ recitandum  esse  cum  ipsa  absolutione  velut  ejusdem  con- 
“ textum.”  The  edition,  of  the  Ritual  which  Catalan!  had 
before  him,  and  to  which  he  here  appeals,  was  that  published 
by  order  of  Benedict  XIV,  as  appears  from  what  he  states 
in  the  dedication  of  his  work  to  that  Pontiff.  He  cites 
also,  in  favor  of  the  same  view,  the  “ Instructiones  ” of  St. 
Charles  (Act.  p.  iv,  De  Sacramento  Poenitentise,  p.  434),  which 
are  very  minute  both  as  to  the  ceremonies  to  be  observed  and 
the  words  to  be  used  by  the  priest  in  giving  absolution  ; and 
in  them  “ deinde  is  printed  in  type  indicating  that  it  is 
to  be  pronounced  by  the  confessor.  Now,  there  is  reason  to 
believe  that  the  Roman  Ritual  was  compiled  in  great  part 
from  these  “ Instructiones.”  In  fact  its  rubrics  are  taken  from 
them  verbatim.  It  is  not  unreasonable,  then,  to  conclude 
that,  when  two  editions  of  the  Ritual  differ  as  to  a word,  the 
more  exact  is  that  which  agrees  with  the  text  of  the  “ In- 
“ structiones,”  and  that  the  innovation,  if  any,  should  be  put 
down  to  that  which  differs  from  it. 


ON  THE  SACRAMENT  OF  PENANCE. 


479 


989.  Fornici,  who  was  a consultor  of  the  Sacred  Congrega- 
tion of  Indulgences  and  professor  of  Sacred  Liturgy  in  the 
Roman  Seminary,  adopts  the  view,  and  almost  the  very 
words,  of  Catalani.  As  a reason  why  the  priest  should  use  the 
word,  he  says : Prsemittitur  illud  (deinde)  peccatorum  ab- 
“ solutioni,  quia  prime  confitens  absolvendus  est  a censuris ; 

deinde  a peccatis.  Et  cum  absolutio  a peccatis  sequatur  illam 
^‘a  censuris,  sacerdos  qui  utramque  impertitur,  in  formula 
absolutionis  recitare  debet  etiara  adverbium  conjunctivum, 
ut  evidenter  dignoscatur.  diversas  esse  absolutiones,  quae  in 
uno  actu  jurisdictionali  conjunguntur.” 

990.  De  Herdt  makes  no  reference  to  the  controversy,  nor 
does  he  even,  give  the  words  of  the  Ritual.  Falise  simply 
gives  the  formula  of  the  Ritual  with  deinde  as  part  of  the 
text.  (Du  Sacrement  de  Penitence,  § II,  n.  7.)  Bauldry  un- 
derstands the  Sacred  Congregation,  in  the  answer  above  cited,  to 
condemn  the  omission  of  the  word  as  an  innovation.  (Expositio 
Rubricarum,  pars  iv,  De  Sacramento  Poenitentiae.)  Schneider 
states  the  doubt  almost  in  the  words  of  Baruffaldi  above 
cited,  and  resolves  it  by  saying:  Vocabulum  ‘deinde,’  licet 
“ in  nonnullis  editionibus  Ritualis  Romani  rubro  sit  charactere 
“impressum,  ad  formam  tamen  integram  spectat.”  (Manuale 
Sacerdotum,  etc.  ; De  Sacramento  Poenitentiae,  § Forma  Ab- 
solutionis, in  nota.  Editio  sexta,  Coloniae,  1871.)  As  he 
refers,  in  support  of  this  opinion,  to  the  answer  of  the  Sacred 
Congregation,  he  evidently  understands  it  in  the  sense  in  which 
it  is  understood  by  Bauldry.  And  in  fact  this  interpretation 
derives  some  probability  from  the  form  in  which  the  question 
is  put.  For  it  is  simply  asked  whether  the  word  should  be 
omitted,  because  in  some  editions  it  is  printed  in  red  type. 
Now,  this  seems  to  imply  that,  up  to  the  date  of  the  question, 
1,  the  word  was  in  most  editions  printed  as  part  of  the  text, 
and,  2,  that  usage  was  against  the  omission.  The  Sacred 
Congregation  therefore,  by  answering,  “ Nihil  innovandum,” 
may  be,  not  unreasonably,  understood  as  deciding  that  the 
word  should  not  be  omitted. 

991.  The  editions  of  the  Ritual  hitherto  in  common  use  in 
Ireland,  England,  and  America,  have  “ deinde  ” printed  as 
part  of  the  text,  and  confessors  in  these  countries  have  uni- 
versally pronounced  it  as  such.  The  same,  we  believe,  holds 
also  for  France,  Belgium,  and  German Some  very  recent 
editions,  as,  e.  g.,  that  of  IMechlin,  1869,  have  the  word  in 
red,  as  it  is  in  the  Propaganda  edition  j but  that  this  has  not 


480 


ON  THE  SACRAMENT  OF  MATRIMONY. 


affected  the  practice  of  the  clergy,  may  be  inferred  from  the 
note  of  Father  Schneider  above  cited. 

992.  In  the  present  state  of  the  controversy,  and  until  the 
Sacred  Congregation  gives  a clear  decision  on  the  point,  we 
think  the  confessor  is  free  to  follow  in  practice  whatever 
opinion  he  pleases ; for  it  is  hardly  necessary  to  observe  that 
the  use  or  the  omission  of  the  word  does  not  in  any  way  affect 
the  validity  of  the  sacramental  form.  We  rather  incline, 
however,  to  tbe  use  of  the  word,  for,  without  doubt,  in  most 
countries,  the  use  was,  so  to  speak,  in  possession,  when  the 
answer  of  the  Sacred  Congregation  was  given ; and,  therefore, 
to  continue  that  use  cannot  well  be  regarded  as  the  innova- 
tion forbidden  by  the  answer. 

ON  THE  SACRAMENT  OF  MATRIMONY:  DE  SACRAMENTO 

MATRIMONII.’^ 

993.  Matrimony  is  so  called,  according  to  the  common 
opinion,  because  the  female  who  contracts  it  undertakes  the 
office  and  duty  of  a mother — the  words,  Matris  munia,”  from 
which  it  is  derived,  signifying  the  duties  of  a mother. 

994.  This  sacred  contract  was  instituted  by  Cod  himself 
in  the  terrestrial  paradise,  and  was  elevated  by  Christ  to  the 
dignity  of  a sacrament  of  the  New  Law.  For  a statement 
of  the  Catholic  doctrine  on  this  subject,  and  its  vindication 
against  the  heretics,  seeBellarmine,  de  Sacramento  Matrimonii, 
tom.  iii,  p.  725.  (Edit.  Prag.  1721.) 

I. 

Parochus  admoiiitus  de  aliquo  matrimonio  in  siia  parochia  contra- 
hendo,  primum  cognosoat  ex  his  ad  quos  spectat,  qui  et  quales  siut, 
qui  matrimonium  contrahere  volunt  : An  inter  eos  sit  aliquod  cano- 
nicum  impedimentum  : Utrum  sponte,  libere,  et  secundum  honestatem 
sacrament!  velint  contrahere:  Utrum  sint  in  aetate  legitima,  ut  vir 
saltern  quatuordecim,  mulier  vero  duodecim  annos  expleverit:  et 
uterque  sciat  rudimenta  fidei,  cum  ea  deinde  filios  sues  docere  debeant. 

995.  When  the  parish  priest  gets  notice  that  a marriage  is 
about  to  be  contracted  in  his  parish,  he  is  directed  by  this 
rubric  to  ascertain,  in  the  first  place,  whether  the  parties 
concerned  are  in  a condition  to  contract  validly  and  licitly; 
whether  there  is  between  them  any  canonical  impediment, 
and  especially  whether  they  are  acting  freely  j whether  they 
have  attained  the  proper  age,  which  is  fourteen  years  com- 


ON  THE  SACRAMENT  OF  MATRIMONY. 


481 


plete  for  males,  and  twelve  for  females  j and  whether  they 
know  the  Christian  doctrine,  which  it  will  be  their  duty 
afterwards  to  teach  to  their  children.  The  inquiries  regarding 
the  liberty  of  the  parties  and  their  ages  are  particularly 
necessary  in  the  case  of  young  persons  whose  mam  age  is 
arranged  by  their  parents.  Great  prudence  and  caution  are 
necessary  where  there  is  question  of  a marriage  without  the 
knowledge  or  consent  of  parents.  Pastors  are  .directed,  in 
the  Catechism  of  the  Council  of  Trent,  to  instruct  children 
m their  duties  towards  parents  and  guardians  on  this  head, 
and  to  exhort  them  not  to  contract  marriage  without  their 
knowledge  or  against  their  wishes.  (P.  ii,  cap.  8,  No.  32.) 
As  a general  rule,  such  marriages  are  not  contracted  without 
sin.  It  is  the  common  opinion  of  theologians  that  children 
are  bound  to  consult  their  parents  and  follow  their  advice  on 
this  matter,  at  least  so  far  as  not  to  contract  a marriage 
against  their  just  and  reasonable  wishes.  (Lig.,  6,  849.) 
On  the  other  hand,  it  is  certain,  from  the  declaration  of  the 
Council  of  Trent  (Sess.  24,  cap.  i,  de  Reform.  Mat.),  that  the 
consent  of  parents  is  not  necessary  for  the  validity  of  marriage  j 
and  theologians  teach  that  their  objections  may  be  in  some 
cases  so  very  unreasonable,  that  the  children  are  not  bound 
to  attend  to  them.  (Lig.,  ibid.,  conveniunt  autem.)  Pdie 
priest,  therefore,  when  asked  to  assist  at  such  a marriage, 
must  carefully  weigh  all  the  circumstances,  and,  if  possible, 
arrange  matters  so  that  the  parents  may  be  induced  to  con- 
sent, or  at  least  may  have  no  reason  to  complain  of  him  for 
assi feting  at  the  marriage. 

996.  A sufficient  knowledge  of  the  rudiments  of  faith  or  of 
the  Christian  doctrine  is  a necessary  disposition  for  worthily 
entering  into  the  married  state.  The  Ritual  directs  the 
pastor’s  attention  to  this,  and  assigns  one  very  urgent  reason 
why  this  knowledge  should  be  required  : that  parents  are 
bo¥ind  to  teach  their  children  the  rudiments  of  faith.  Pdie 
Synod  of  Thurles,  adopting  the  w^ords  of  the  Ritual,  directs 
special  attention  to  the  same  point.  Benedict  XIV  expressly 
teaches  that  the  pastor  should  refuse  to  marry  those  who  are 
ignorant  of  the  Christian  doctrine,  because  they  are  bound 
sub  gravi  to  acquire  a knowledge  of  it ; and  if  they  fail  to  do 
so  when,  as  is  supposed,  they  have  the  opportunity,  they  are 
in  a state  of  mortal  sin,  and,  consequently,  would  be  guiltv 
of  sacrilege  by  receiving  the  sacrament  in  this  state.  Now, 
though  the  priest  be  not  the  minister  of  the  sacrament,  his 


482 


ON  THE  SACRAMENT  OF  MATRIMONY. 


obligations  in  regard  to  it  are  in  many  respects  the  same  as  if 
be  were  Nor  is  it  lawful  for  him  to  sanction,  by  his  pre- 
sence and  authority,  a contract  which,  in  the  circumstances, 
would  be  an  act  of  sacrilege.  (De  Syn.  Dioec.,  lib.  viii,  cap. 
xiv,  nn.  4 and  5.)  Should  the  priest,  then,  find,  on  interro- 
gating the  parties,  that  they  have  not  this  necessary  knowledge, 
he  should  admonish  them  of  their  obligation  of  acquiring  it 
before  the  celebration  of  the  marriage,  which  he  is  not  to 
permit  until  he  is  satisfied  that  they  have  acquired  it.  He 
must  bear  in  mind,  however,  what  the  same  great  authority 
observes  {ibid.,  n.  6),  that  a person  may  know  and  believe 
the  principal  mysteries  of  faith,  and  may  have  a sufficient 
knowledge,  in  his  own  rude  way,  of  whatever  else  he  is 
required  to  know,  necessitate  pnBcepti,  and  yet  be  so  stupid 
and  so  deficient  in  memory  as  to  be  unable,  even  after  dili- 
gent application,  to  remember  and  repeat  them.  Such 
persons  are  not  to  be  refused  marriage,  but  the  pastor  must 
take  care  that  what  they  have  learned  be  frequently  repeated 
to  them,  so  that  they  may  not  completely  forget  it.  {Ibid.) 

11. 

Noverit  ex  probatis  auctoribus  quae  sint  canonica  impedimenta 
matrimonii  contrahendi,  et  quje  coiitractum  dirimant;  et  qui  sintgradns 
consangninitatis  et  affinitatis,  et  item  cognatioiiis  spiiitualis  ex  Baptism! 
vel  Contirmatioiiis  Sacramento  contractse. 

997.  The  pastor  must  know,  out  of  approved  authors, 
what  are  the  impediments  of  matrimony — those  which  render 
the  contract  illicit,  as  well  as  those  which  would  render  it 
null.  We  need  not  here  enumerate  the  several  impediments, 
as  it  would  be  beyond  our  scope  to  treat  of  them.  Our 
object  is  simply  to  explain  the  rubrics  of  the  Ritual,  and 
develop  the  instructions  which  they  contain  ; and  we  touch 
on  theological  questions  only  so  far  as  we  deem  it  necessary 
for  this  object.  Beyond  some  hints  here  and  there,  we 
cannot  often  allude  even  to  many  controverted  points. 
Amongst  those  who  have  written  on  the  impediments  of 
marriage,  there  is,  perhaps,  no  author  that  may  be  consulted 
with  greater  advantage  than  Carriere.  We  do  not  mean  to 
recommend  all  his  opinions  and  decisions,  for  he  is  generally 
inclined  to  the  side  of  rigor,  and  his  opinion  on  the  power 
of  the  state  to  institute  impediments  is  quite  untenable;  but, 
for  lucid  arrangement  of  the  matter,  and  for  clearness  and 


•ON  THE  SACRAMENT  OF  MATRIMONY. 


483 

precision  in  tlie  discussion  of  each  question,  we  do  not  know 
any  writer  on  the  subject  that  can  be  compared  with  liim. 
Moreover,  when  theologians  are  divided  on  any  point,  he  is 
careful  to  state  the  several  opinions,  with  accurate  references 
to  the  places  in  which  they  are  given  by  the  authors ; so  that 
the  student  who  desires  fuller  information  on  any  point,  is 
put  in  the  way  of  finding  it  at  once. 

998.  The  rubric  mentions  those  impediments  that  are  of 
most  frequent  occurrence,  and  directs  the  special  attention  of 
the  pastor  to  them.  He  must  know  how  to  reckon  the 
degrees  of  consanguinity  and  affinity,  and  when  a spiritual 
relationship  is  contracted  by  baptism  or  confirmation.  In 
tracing  degrees  of  kindred,  it  is  recommended  to  form  a kind 
of  genealogical  tree  by  writing  down  the  name  of  the 
common  ancestor,  and  under  it  the  names  of  his  descendants  j 
those  of  each  succeeding  generation  being  placed  under  those 
of  the  preceding,  until  you  reach  the  names  of  the  parties  of 
whom  there  is  question.  Otherwise,  by  writing  down  the 
names  of  the  parties,  and  over  them  the  names  of  the  parents 
through  whom  they  are  likely  to  be  related,  until  you  reach 
the  common  ancestor. 


III. 

ITabeat  in  primis  ipse  bene  cognita  praecepta  ilia  omnia,  quae  in 
matiiinoniis  rite  conficiendis  servare  oportere,  sacri  Canones,  el  prae- 
cipue  sancta  Synodus  Tridentina  jnssit : dabitque  operam  ut  ilia  in 
parochia  sua  accurate  exacteque  serventur. 

999.  It  is  the  manifest  duty  of  the  pastor  to  make  himself 
acquainted  wdth  the  laws  of  the  Church,  and  especially  those 
of  the  Council  of  Trent,  relating  to  the  celebration  of  mar- 
riage, and  to  endeavor,  as  far  as  he  can,  to  have  them  fully 
observed  in  his  parish.  This  duty  is  strongly  inculcated  in 
the  decrees  of  the  Provincial  Councils  that  have  been  lately 
held  in  almost  every  country.  The  Synod  of  Thurles 
admonishes  parish  priests  to  observe  accurately  whatever  is 
prescribed  by  the  Homan  Hitual  with  regard  to  the  cele- 
bration of  marriage.  (De  Mat.,  n.  51.) 


484 


ON  THE  SACRAMENT  OF  MATRIMONY. 


IV. 

Praesertim  vero  meminerit  raatrimonia  inter  raptorem  et’  raptam, 
dum  ipsa  in  raptoris  potestate  manserit,  inita,  nec  non  clandestina,  et 
(juselibet  matrimonia,  quae  aliter  quam  praesente  Parocho,  vel  alio 
Sacerdote  de  ipsius  Parochi  vel  Ordinarii  Ucentia,  et  duobus  vel 
tiibus  testibus  contrahuntur,  ex  ipsius  Concilii  decretis  irrita  omnino 
ac  nulla  esse. 

1000.  The  forcible  abduction  of  a female,  with  intent  to 
marry  her,  constitutes  the  impediment  of  ‘^raptus.’’  (Lig., 
1107.)  It  is  certain  that  a marriage  between  the  raptor 
and  his  victim,  while  she  remains  in  his  power,  would  be 
null.  This  is  expressed  by  the  Ritual  in  the  words  used  by 
the  Council  of  Trent  : ‘‘  Dum  ipsa  in  potestate  raptoris 

manserit.”  For  a full  discussion  of  this  impediment,  and  the 
cases  in  which  it  arises,  see  Carriere  (905  et  seq.). 

1001.  The  word  clandestine  ” was  formerly  applied  to 
marriages  celebrated  without  a previous  proclamation  of  the 
banns,  or  certain  other  prescribed  solemnities,  as  well  as  to 
those  celebrated  without  the  presence  of  the  parish  priest  and 
witnesses.  It  may  be  used,  and  is  still  sometimes  used,  in 
this  wide  sense ; but,  since  the  Council  of  Trent,  it  is 
commonly  applied  only  to  those  marriages  that  are  cele- 
brated without  the  presence  of  the  parish  priest,  or  some 

other  priest  with  permission  from  him  or  the  ordinary,  and 

two  or  three  witnesses.”  Understood  in  this  restricted  sense, 
a clandestine  marriage  is  null  and  void,  according  to  the 
decree  of  Trent.  The  Council,  however,  requires  that  the 
decree  be  published  in  every  parish,  and  it  is  not  binding 
until  after  thirty  days  from  its  first  promulgation.  (Sess.  24, 
De  Bit.  Mat.,  cap.  1.)  If  it  be  observed  in  any  place,  for  a 
considerable  time,  as  a decree  of  the  Council,  it  is  held  to  be 
sufficiently  promulgated  in  that  place.  (Car.,  1181.)  The 
decree  is  at  present  in  force  everywhere  in  Ireland,  but  is 
not  yet  published  in  England  and  Scotland. 

1002.  Many  questions  of  great  practical  importance  re- 
garding the  interpretation  of  this  decree  are  discussed  by 
theologians  and  canonists  j and  some  of  them  have  been 
decided  by  the  Sacred  Congregation  of  the  Council,  and 
even  in  Papal  Constitutions. 

1003.  1°.  If  the  parties  belong  to  a place  where  the  decree 
is  received,  and  there  contract,  the  marriage  must,  of  course, 
be  celebrated  in  the  form  prescribed ; otherwise  it  is  null. 


ON  THE  SACRAMENT  OF  MATRIMONY. 


485 


1004.  2°.  If  they  go  to  a place  where  the  decree  is  not 
received,  and  there  contract  a clandestine  marriage,  without 
having  previously  acquired  a domicile  or  quasi-domicile  in 
the  place,  the  marriage  is  invalid.  (Oar.,  1187  j Lig.,  1080, 
Si  quis  vero.)  This  is  quite  certain  for  the  case  in  which 
they  go  for  the  purpose  of  evading  the  law,  or,  as  is  said, 

in  fraudem  legis,”  as  is  clear  from  the  responses  of  the 
Sacred  Congregation,  approved  by  a decree  of  Urban  VIII, 
and  republished  and  confirmed  by  Benedict  XIV,  in  the 
constitution,  ‘‘  Baucis  abhinc  hebdornadis,’^  of  which  we  have 
much  to  say  a little  further  on.  But  is  the  decision  to  be 
restricted  to  this  case  f Carriere  maintains  (loc.  cit.)  that  no 
such  restriction  is  to  be  admitted,  and  contends  (1188)  that 
che  decisions  are  to  be  understood,  and  were  understood  by 
Benedict  XIV,  as  against  the  validity  of  the  marriage,  even 
though  the  parties  had  no  intention  of  evading  the  law,  unless 
they  had  previously  acquired  a sufficient  domicile.  Many 
eminent  authorities,  however,  maintain  that  the  restriction 
IS  to  be  admitted,  and  that  the  marriage  would  be  valid 
unless  the  parties  acted  “ in  fraudem  legis.”  (Schmalzgrueber 
lib.  iv,  tit.  iii,  110.)  De  Lugo  holds  the  same  opinion. 
(Uesp.  Mor.  Dub.  xxxvi,  n.  5.)  St.  Liguori  does  not  mention 
the  restriction,  but  simply  states  that  the  marriage  would  be 
null  (1.  c.). 

1005.  Up  to  the  time  of  Urban  VIII  it  was  the  more 
common  opinion  of  theologians  that  parties  going  from  a 
place  where  the  decree  of  the  Council  of  Trent  concerning 
clandestine  marriages  was  in  force,  to  a place  where  it  was 
not,  for  the  very  purpose  of  evading  the  decree,  could  con- 
tract a clandestine  marriage  validly  in  the  latter,  even  though 
they  neither  abandoned  their  domicile,  nor  acquired  a 
domicile  or  quasi-domicile  in  the  place  where  the  marriage 
took  place.  Since  the  publication  of  the  Responses  confirmed 
by  Urban  VIII,  this  opinion  is  no  longer  tenable ; but 
before  the  publication  of  the  Responses,  the  validity  of  such 
marriage  was  maintained  by  the  most  celebrated  writers  on 
matrimony.  Amongst  these,  Sanchez,  who  indisputably 
holds  the  first  place,  maintains  this  opinion.  (De  Matrimonio, 
lib.  iii,  disp.  17,  n.  29.)  It  is  also  supported  by  Basil  Pontius 
(lib.  V,  De  Mat.,  c.  9,  n.  4),  although  this  author  is  ever  on  the 
watch  to  controvert  the  opinions  of  Sanchez.  Many  other 
celebrated  authors  who  maintained  the  same  opinion  are  cited 
by  Benedict  XIV,  in  the  constitution  referred  to.  They 


480  ON  THE  SACRAMENT  OF  MATRLMONY. 

relied  on  the  axiom  that  locus  regit  conlraclum,  which  is 
especially  true  as  to  the  forms  to  be  observed  in  entering 
into  a contract.  To  the  objection  that  tlie  parties  who  leave 
tlieir  own  parish  for  the  purpose  of  contracting  clandestinely,  go 
there  in  fraudeni  legis,”  they  answer  that  the  parties  only 
use  their  lawful  right  by  passing  fi-om  one  place  to  another, 
where  they  contract  according*  to  the  forms  prescribed  by  the 
Church  for  that  place;  or  that,  if  there  be  fraud,  it  is  one 
which  only  renders  the  marriage  illicit,  but  not  invalid. 
Hence  some  theologians  and  canonists  of  great  authority 
regard  the  Responses  confirmed  by  Urban  VIII  and 
Benedict  XIV,  not  as  a mere  interpretation  of  the  law  of  the 
Council  of  Trent,  but  as  a new  enactment  established  by  the 
Supreme  Pontiffs  for  the  purpose  of  preventing  the  law  of 
Trent  from  being  evaded.  But,  however  this  may  be,  it  is 
certain  that  parties,  retaining  a domicile  in  a place  where  the 
decree  of  Trent  is  in  force,  and  proceeding  to  a place  where 
it  is  not  in  force,  for  the  purpose  of  contracting  marriage 
there  clandestinely,  cannot  intermarry  validly  until  they  have 
acquired  a domicile  or  quasi-domicile  in  the  latter  place. 

lOOG.  But  can  they  contract  marriage  validly  before  the 
parish  priest  of  the  place  to  which  they  have  betaken  them- 
selves and  two  witnesses'?  Certainly  not;  because,  as  they 
have  neither  a domicile  nor  a quasi-domicile  there,  he  is  not 
their  proprius  parochus,  wdiose  presence  is  required  by  the 
Council  of  Trent.  How,  then,  can  they  contract  a valid 
marriage  in  the  place  where  they  now  are?  Their  parish 
priest,  or  bishop,  or  the  vicar-general  of  the  diocese,  provided 
he  has  jurisdiction  over  the  parish  where. their  domicile  is 
situated,  can  either  personally  assist  at  the  marriage,  as  far 
as  the  validity  is  concerned,  or  delegate  any  other  priest  to 
do  so.  But  if  the  parties  named,  on  being  applied  to,  refuse 
to  do  either  one  or  other  of  the  things  mentioned,  they  must 
either  wmit  until  they  shall  have  acquired  a domicile  or  quasi- 
domicile in  the  place  to  which  they  have  gone,  and  then  they 
can  marry  validly,  but  illicitly,  without  the  presence  of  any 
priest ; or  they  must  return  to  their  place  of  residence,  w'here 
they  can  contract  immediately  before  their  own  parish  priest 
or  his  deputy. 

1007.  The  Responses  confirmed  by  Urban  VIII  and 
Benedict  XIV  are  of  so  much  importance  that  we  transcribe 
them  from  the  constitution,  Faucis,  ahliinc  Hchclomaclis.  (Vol. 
xii,  Bull.  Bened.  XIV,  })p.  390,  391.  Ed.  Mechlin.,  1827.) 


ON  THE  SACRAMENT  OF  MATRIMONY. 


487 


Quaeritur  humiliter  a Sacra  Oongregatione : An  incolac 
tarn  masculi  qnam  foeininse,  loci  in  quo  Concilium  Triden- 
tin um  in  puncto  matrimonii  est  prornulgatum  et  acceptatum, 
transeuntes  per  locum  in  quo  dictum  Concilium  non  est 
prornulgatum,  retinentes  idem  domicilium,  valide  possint  in 
isto  loco  matrimoninm  sine  Parocho  et  testibus  contrahere?  . 

Secundo.  Quid,  si  eo  praedicti  incolae  tarn  masculi  quam 
foeminae,  solo  animo  sine  Parocho  et  testibus  contrahendi,  se 
transferant,  habitationem  non  mutantes? 

Tertio.  Quid,  si  iidem  incolae  tain  masculi  quam  foeminae, 
eo  transferant  habitationem 'illo  solo  animo,  ut  absque  Paro- 
cho et  testibus  contrahant? 

Die  5 Septembris:  Sacra  Congregatio  Cardinalium  Con- 
cilii  Tridentini  Interpretum,  ad  primum  et  secundum  respon- 
dit,  non  esse  legitimum  matrimoninm  inter  sic  se  transferentes 
cum  fraude. 

Ad  tertium  respondit,  nisi  domicilium  vere  transferatur, 
matrimoninm  non  esse  validum. 

Urban  VIII,  in  1627,  issued  a brief  confirming  these  Re- 
sponses. 

1008.  It  is  quite  certain,  therefore,  that,  if  the  parties  go 
from  a place  in  which  the  decree  is  in  force,  to  a place  in 
which  it  is  not, /or  the  purpose  of  evading  the  laiv,  and  there 
contract  clandestinely,  the  marriage  is  invalid.  But  is  the 
decision  to  be  restricted  to  this  case?  We  have  seen  that 
Carriere  (n.  1188)  maintains  that  it  is  not,  and  that  the  de- 
cisions are  to  be  understood,  and  were  understood  by  Benedict 
XIV,  as  against  the  validity  of  the  marriage,  even  though 
the  parties  had  no  intention  of  evading  the  laiv,  unless  they 
had  previously  acquired  a domicile  or  quasi-domicile. 

And  this  would  certainly  appear  to  be  implied  by  the 
response  to  the  first  and  second  questions  proposed  by  the 
Archbishop  of  Cologne ; which  were  answered  by  the  Sacred 
Congregation,  and  confirmed,  as  already  stated,  by  Urban 
VIII.  The  sole  difi’erence  between  the  first  and  second 
(piestions  is,  that  in  the  first  there  is  no  mention  of  the  parties 
having  gone  to  the  place  where  the  decree  against  clandestine 
marriages  was  not  in  force,  for  the  purpose  of  contracting 
there  ] and  in  the  second  it  is  supposed  that  they  have  gone 
with  sueh  intention.  The  same  answer  is  given  to  both  inter- 
rogatories: “Non  esse  legitimum  inatiimonium  inter  sic  se 
“ ti  ansferentes  cum  fraude.”  The  only  reason  for  doubting  that 
the  rnariiage  would  be  invalid,  whether  the  parties  went  to 


488 


ON  THE  SACRAMENT  OF  MATRIMONY. 


the  place  for  the  purpose  of  contracting  marriage  there,  or  for 
some  other  purpose^  must  be  derived  from  the  words  cum 
fraude.  But  to  this  it  may  be  readied  that,  for  instance, 
if  two  Catholics,  having  their  domicile  in  Ireland,  should  go 
for  a few  days  to  England  for  recreation  or  on  business,  and 
contract  marriage  there,  either  privately  or  in  presence  of 
a priest  and  witnesses,  without  obtaining  the  authority  of  their 
own  parish  priest,  they  would  act  “ in  fraudem  legis.’^  It 
certainly  appears  to  us  that  such  a marriage  would  be  regarded 
as  invalid.  No  doubt  some  eminent  authorities,  as  Schmalz- 
grueber  (lib.  iv,  tit.  iii,  n.  110),  hold  the  contrary.  But  this 
great  author  treats  the  question  very  briefly,  and  Lugo  (Besp. 
Moral.,  lib.  1,  Dub.  36,  n.  5),  though  often  quoted  for  the 
same  opinion,  does  not  maintain  that  the  marriage  weuld 
be  valid,  even  if  the  parties  did  not  go  to  the  place  for  the 
purpose  of  contracting  a clandestine  marriage,  nor  does  he 
rely  much  on  the  words  cum  fraude.  As  he  is  often  said  to 
have  shown  that  the  decisions  can  he  understood  only  of  the 
case  in  which  the  parties  act  “ in  fraudem,’^  it  may  be  well  to 
quote  his  words  : In  quo  cardinalium  responso  illos  doctrinam 
“ restrinxisse  ad  eos  qui  ex  industria  per  breve  tempus  trans- 
ibant  ad  locum  aliurn,  ut  sine  parocho  et  testibus  contraherent, 
et  ideo  addiderunt  fortasse  in  responso  verba  ilia,  cum  fraude, 
quae  in  interrogatione  non  fuerunt  formaliter  expressa  : quo 
casu  negari  non  potest,  communem  doctorum  sententiam 
negare  matrimonium  illud  posse  valide  fieri,  quidquid  sit, 
an  in  aJiis  casibus  valeat,  quando  ad  negotia,  vel  mercimonia, 
“ aut  ob  alios  eventus  ibi  contrahentes  inveniuntur,  de  quibus 
^‘cardinales  nihil  voluerunt  definire.^^  But  we  have  already 
shown  that  the  question  as  to  the  intention  was  formally  put 
in  the  second  question,  and  therefore  designedly  left  out  of 
the  first ; and  we  therefore  think  that  the  mariiage  would  be 
invalid,  even  if  the  parties  had  not  gone  to  the  place  without 
the  intention  of  contracting  clandestinely  in  it. 

1009.  Moreover,  Benedict  XIV  proves  that  the  Sacred 
Congregation  always  adhered  to  the  response  given  to  the 
interrogatories  of  the  Archbishop  of  Cologne,  by  citing  a 
decision  giv^en  by  it  on  the  16th  of  December,  1640,  which 
was  as  follows  : “ Sacra  Congregatio  censuit  non  valere  matri- 
“ moniurn  contractum  coram  parocho  loci,  ubi  contrahentes 
reperiuntur  non  animo  ibi  domicilium  contrahendi.”  Now, 
this  decree,  as  well  as  all  those  which  declare  to  be  void 
all  marriages  contracted  “ coram  parocho  rurali,”  whether  the 


ON  THE  SACRAMENT  OF  MATRIMONY. 


489 


parties  have  gone  there  to  get  married,  or  for  recreation,  or  on 
business,  clearly  shows  that  all  marriages  contracted  by 
parties  in  a place  where  they  happen  to  be  at  the  time, 
without  the  intention  of  acquiring  a domicile  or  quasi-domicile 
in  said  place,  are  invalid. 

1010.  We  have  said  above  that  the  marriage  would  be 
invalid,  unless  the  parties  have  previously  acquired  a domicile 
or  quasi-domicile  in  the  place ; for,  if  they  have,  the  clan- 
destine marriage  would  be  valid,  according  to  all,  because 
they  would  then  be  in  the  same  condition  as  the  inhabitants 
of  the  place,  enjoying  its  privileges,  as  well  as  subject  to  its 
laws.  And  this  holds,  even  though  they  may  have  lefi  their 
former  residence  for  the  very  purpose  of  evading  the  decree 
of  Trent.  This  is  clear  from  the  answer  to  the  third  of 
the  queries  contained  in  the  constitution,  Faucis  dbhinCj 
already  quoted.  (See  also  Car,,  1194;  Lig.,  loc.  cit.)  But 
if  they  have  not  acquired  at  least  a quasi-domicile  in 
the  place,  it  is  necessary,  for  the  validity  of  the  marriage — ■ 
or,  at  least,  to  remove  all  doubt  about  its  validity — 
that  it  be  celebrated  according  to  the  form  prescribed 
by  the  decree ; and,  consequently,  the  parish  priest  of 
one  of  the  parties  must  be  present  to  assist  at  it,  or  some 
other  priest  with  his  permission.  Hence,  for  instance,  if  two 
persons  from  Dublin  go  to  London,  and  wish  to  get  married 
there,  before  either  of  them  has  acquired  a quasi- domicile,  the 
marriage  must  be  celebrated  before  the  parish  priest  of  either 
(who  might  happen  to  be  in  London  at  the  time),  or  before 
another  priest,  with  his  permission  or  the  permission  of  the 
Ordinary  of  Dublin. 

1011.  3°.  If  the  parties  belong  to  a place  where  the  decree 
is  not  received,  but  contract  marriage  in  a place  where  it  is 
receiv’^ed,  the  marriage  would  be  invalid,  unless  celebrated 
according  to  the  form  prescribed.  This  is  the  common 
opinion  according  to  Carriere,  1187,  and  St.  Liguori,  1080,  who 
quote  several  authors,  Sanchez,  Pontius,  etc.  Carriere,  while 
admitting  it  to  be  the  opinion  of  most  theologians,  thinks  the 
opposite  opinion  more  probable  (1194).  Gury,  however, 
gives  it  as  certain  (p.  640),  and  in  practice  we  must  regard  it 
as  such. 

1012. '  But  who  is  the  parish  priest  in  this  case?  Is  it  the 
parish  priest  of  one  of  the  parties,  or  of  the  place  in  which 
the  marriage  is  celebrated  ? 

1013.  On  the  one  hand,  it  might  be  maintained  that  since, 


490 


ON  THE  SACRAMENT  OF  MATRIMONY. 


if  the  marriage  took  place  in  tlieir  own  country,  tlie  presence 
of  the  parish  priest  of  one  of  the  parties  would  not  be  required 
for  its  validity,  it  is  hard  to  suppose  that  it  would  become 
necessary,  when  they,  in  some  manner,  withdraw  from  his 
jurisdiction  by  going  to  a place  where  the  decree  of  Trent  is 
received.  It  might  be  said,  moreover,  with  Carriere  (1190), 
that,  since  the  decree  is  not  published  in  his  parish,  he  is  not 
that  authorized  witness  deputed  by  the  Church  to  assist  at 
the  marriage,  however  his  presence  might  be  desirable  in 
other  respects  j and  if  this  be  true,  when  the  marriage  is  cele- 
brated in  his  parish,  it  ought  to  hold  a fortiori  when  it  is 
celebrated  elsewhere.  Again,  it  is  a general  principle  in  the 
law  of  contracts,  that  the  forms  or  the  formalities  to  be  ob- 
served in  making  them  are  those  that  are  required  in  the 
place  where  they  are  entered  into,  according  to  the  axiom, 
locus  regit  actum  : and  it  is  on  this  very  principle  that 
theologians  and  canonists  maintain  the  necessity  of  complying 
with  the  decree  of  Trent  in  the  case  now  under  consideration  ; 
but  this  principle  founds  a kind  of  presumption  in  favor  of 
the  parish  priest  of  the  place,  unless  when  it  is  clearly  shown 
that  not  he,  but  some  other,  is  authorized  to  assist. 

1014.  On  the  other  hand,  it  is  certain,  as  we  shall  see, 
that  the  parish  priest  whose  presence  is  required  by  the  Coun- 
-cil  is  the  parish  priest  of  one  of  the  parties,  and  not  the 
parish  priest  of  'the  place  as  such ; and  therefore,  since  it  is 
supposed  they  have  a parish  priest,  and  are  not  ^Wagi,”  whose 
case  is  exceptional,  it  would  seem  that  his  presence  is  required ; 
and,  in  fact,  Lacroix  (lib.  vi,  pars  3,  n.  713)  infers  that,  be- 
cause, according  to  the  common  and  true  opinion,  the  marriage, 
even  if  contracted  before  the  parish  priest  of  a parish  in  which 
the  parties  now  are,  but  where  neither  of  them  has  a domicile 
or  quasi-domicile,  would  be  invalid,  therefore  their  own  parish 
priest,  in  whose  parish  the  decree  of  Trent  is  not  in  force,  or 
his  deputy,  should  assist  at  the  marriage  to  render  it  valid. 
Lacroix  does  not  give  the  authority  of  a single  theologian  or 
canonist  for  this  opinion ; and  he  quite  overlooks  the  hypo- 
thesis, that  neither  the  parish  priest  of  the  place  where  the 
parties  have  neither  a domicile  nor  quasi-domicile,  nor  the 
parish  priest  of  the  place  where  they  have  a domicile,  but  in 
whose  parish  the  decree  of  Trent  has  not  been  published,  can 
assist  validly  at  the  marriage  when  contracted  where  the  decree 
binds ; and  that  such  parties  cannot  contract  a valid  marriage 
except  by  acquiring  a domicile  or  quasi-domicile  in  the  place 


ON  THE  SACRAMENT  OF  xMATRIMONY. 


491 


where  they  now  are,  or  by  returning  to  their  own  country, 
where,  as  far  as  the  validity  is  concerned,  the  presence  of  a priest 
is  not  required.'  We  do  not  say  that  this  case  has  been 
settled,  as  we  have  not  seen  an  express  decision  on  the  point ; 
but  we  consider  it  so  probable,  that,  until  a decision  shall 
have  been  given  by  the  Holy  See,  no  priest  could  act  on  the 
contrary  opinion  without  grievoiis  sin.  Then,  if  two  Catholics 
come  from  England  or  Scotland  to  Ireland,  in  order  to  marry 
validly,  they  must  acquire  a domicile  or  quasi- domicile  in  the 
latter  country,  or  return  to  the  former. 

1015.  It  follows  from  what  we  have  stated,  that,  if  a 
Catholic  domiciled  in  Ireland  agrees  to  marry  a Catholic 
domiciled  in  England,  the  marriage,  if  contracted  in  Ireland, 
will  be  invalid  unless  solemnized  before  the  parish  priest  and 
witnesses  5 but,  if  contracted  in  England  or  Scotland  without 
the  presence  of  the  pailsh  priest  or  witnesses,  it  will  be  valid, 
but  illicit.  The  decision  in  both  cases  rests  on  the  principle, 
that  locus  regit  coniracium.  ITis  case  had  been  decided  by 
the  Sacred  Congregation.  (Lacroix,  loc.  cit.,  n.  714.)' 

1016.  It  may  be  observed  that  a clandestine  marriage  is 
always  valid  when  one  of  the  parties  is  exempt  from  the  law 
of  Trent,  even  though  the  other  may  be  subject  to  it,  (Car., 
1227.)  Hence,  e.g.,  a person  from  Ireland  who  contracts  a 
clandestine  marriage  in  Scotland  with  a native  of  the  place, 
or  one  having  a sufficient  domicile  there,  is  married  validlv. 

1017.  Another  priest,  with  the  permission  of  the  parish 
priest  or  of  the  ordinary,  can  validly  assist  at  the  marriage, 
according  to  the  words  of  the  decree,  which  are  here  given 
in  the  Ritual.  The  permission  must  be  clear  and  express. 
It  is  not  sufficient  that  it  be  presumed,  or  that  it  certainly 
would  be  given,  if  asked  for.  (Car.,  1330  et  seq.)  It  must 
be  a permission  that  actually  ha,s  been  given,  and  in  virtue  of 
which  he  assists.  It  is  sometimes  a question  whether  it  be 
included  in  a general  permission  or  appointment  to  administer 
sacraments  in  a parish.  Whether  it  be  or  not,  evidently 
depends  on  the  intention  of  the  bishop  or  parish  priest  j and 
this  may  often  be  determined  by  the  circumstances,  or  by 
the  recognized  custom  in  the  place. 

1018.  If  the  curate  has  this  permission,  without  any  ex- 
pressed or  implied  limitation,  it  is  certabi,  1“,  that  he  can 
himself  assist  at  the  mairiage  of  any  parishioner  when  the 
marriage  is  celebrated  in  the  })arish  (Car.,  1344)  ; and  2°, 
that  he  can  assist,  just  as  we  shall  see  the  parish  juiest  can. 


/ 


492  ON  THE  SACRAMENT  OF  MATRIMONY. 

at  the  marriage  of  his  parishioner,  even  in  another  parish, 
unless  his  delegated  powers  be  specially  restricted. 

1019.  The  presence  of  the  priest  must  be  such  that  he  can, 
morally  speaking,  be  a witness  of  the  marriage  ; and,  therefore, 
he  must  have  some  notice  of  the  intention  of  the  parties  to 
contract  before  him.  (Car.,  1263,  1264.)  The  same  may  be 
said  of  the  witnesses.  {Ibid,  1265.) 

1020.  At  least  two  witnesses  must  be  present  with  the 
parish  priest.  It  is  the  common  opinion  of  theologians  that 
any  persons  having  sufficient  intelligence  to  testify  to  the 
marriage  may  be  admitted  as  witnesses.  (Car.,  1350.)  Both 
must  be  present  at  the  same  time  with  the  priest,  and  must 
be  present  also  in  such  a way  that  they  could  afterwards  bear 
testimony  to  the  marriage,  if  called  on.  {Ibid,  1351.) 

V.  . 

Est  autem  proprius  Parochus,  qui  adesse  debet,  is,  in  cujus  parochia 
matrimoniura  celebratur,  sive  viri,  sive  mulieris. 

1021.  The  ^^parochus”  whose  presence  is  required,  is  here 
stated  to  be  the  parish  priest  in  whose  parish  the  marriage  is 
celebrated,  whether  he  be  the  parish  priest  of  the  man  or  of 
the  woman.  When  the  parties  are  from  different  pari^es,  it 
would  seem  from  the  rubric  that  the  parish  where  the  cere- 
mony is  performed  should  determine  the  parish  priest  whose 
presence  is  required ; but  the  matter  having  been  referred  to 
the  Sacred  Congregation,  it  was  decided  that  the  presence  of 
the  parish  priest  of  either  is  sufficient,  no  matter  in  which  of 
the  parishes  the  marriage  is  celebrated  (Car.,  1275) ; no 
matter,  indeed,  where,  in  what  parish  or  what  diocese  it  may 
be  celebrated  (Car.,  12'66,  Lig.,  1081).  In  Ireland,  however, 
as  in  most  other  countries,  the  ceremony  usually  takes  place 
in  the  parish  of  the  bride,  and  is  performed  by  her  parish 
priest,  or  at  least  with  his  permission  ; and  it  is  but  right  and 
proper  in  all  cases  to  have  the  consent  of  the  parish  priest  of 
the  parish  where  the  marriage  takes  place  (Car.,  1.  c.)  : and  it 
would  certainly  be  a grievous  sin  to  give  the  solemn  nuptial 
benediction  without  it  (Lig.,  1087). 

1022.  The  chief  point  to  be  here  determined  is,  the  residence 
necessary  in  any  place  in  order  that  a person  may  be  able 
validly  to  contract  marriage  before  the  parish  priest  of  that 
place. 

1023.  1°.  It  is  certain  that  the  fact  of  being  born  in  any 


ON  THE  SACRAMENT  OF  MATRI3IONY. 


493 


parish  is  not  enough,  if  the  person  has  ceased  to  reside  there. 
(Bened.  XIV,  Inst,  xxxiii,  n.  S.) 

1024.  2°.  It  is  certain  also  that  it  is  sufficient  to  have  a 
fixed  residence  or  domicile  in  a parish.  (Car.,  1273.)  A per- 
son is  said  to  have  a domicile  ” in  a place  when  he  resides 
in  it,  and  intends  to  reside  in  it  permanently.  He  can  acquire 
it  at  once  on  coming  to  a place,  if  his  intention  of  residing 
permanently  be  sufficiently  manifested,  as  it  often  is  by  the 
circumstances  (ibid.),  as,  e g.,  if  he  has  transferred  his  mov- 
able property  to  a house  which  he  has  purchased  and  fitted 
up  as  a residence,  etc. 

1025.  3^.  If  a person  has  two  domiciles  in  two  different  par- 
ishes, which  he  may  have,  if  he  resides  in  them  alternately, 
and  for  about  an  equal  length  of  time  in  each,  he  is  free  to 
marry  before  the  parish  priest  of  either.  (Car.,  1274.) 

1026.  4°.  If  a person,  having  a domicile  in  one  parish,  goes 
to  another  with  the  intention  of  residing  there  for  a consider- 
able time  (“  per  tempus  notabile  ”),  and  sufficiently  manifests 
this  intention,  he  acquires  a ‘‘quasi-domicile”  in  that  place. 
This  is  not  unfrequently  the  case  with  students,  lawyers,  and 
other  professional  men,  persons  holding  situations  in  certain 
public  offices,  etc.  Theologians  seem  to  be  agreed  that  a per- 
son acquires  a quasi-domicile  at  once  if  he  sufficiently  manifests 
his  intention  of  residing  in  a place  for  a tempus  notabile,  and 
really  has  such  intention : but  the  question  is,  whether  such 
a quasi-dornicile  would  suffice  for  marriage  without  the  pre- 
vious residence.  Carriere  is  of  opinion  that  it  does  suffice 
(1277).  Bouvier  is  inclined  to  the  same  opinion  (De  Mat.,  Art. 
V,  § i).  We  consider  this  opinion  to  be  true,  from  the  number 
and  authority  of  theologians  and  canonists  who  hold  it,  some 
of  whom  we  shall  quote  further  on.  In  the  meantime  we 
consider  it  practically  certain:  1°,  because  Benedict  XIV 
(Inst,  xxxiii,  n.  11,  in  fine)  cites  a decision  of  the  Sacred 
Congregation  to  the  following  effect:  “An  valeat  matri- 
“monium  contractum  coram  parocho  illius  loci,  ubi  contra- 
“ hentes  reperiuntur,  non  animo  ihi  clomicilium  contrahendi,  sed 
“ recreationis  causa  ? Et  quid,  si  contrahens  ibi  moretur  tmi- 
^^quam  prjetor,  judex,  seu  medicus  temporalis.”  The  Sacred 
Congregation  answered  that,  in  the  first  case,  the  marriage 
was  invalid,  in  the  second,  valid.  Secondly,  because  this 
opinion,  as  we  have  said,  has  been  maintained  by  the  greatest 
writers  on  matrimony.  It  will  be  sufficient  to  quote  here 
Sanchez  (De  Mat.,  lib.  iii,  disp.  xxiii,  n.  14),  who  says  : “Ilino 


494 


ON  THE  SACRAMENT  OF  MATRIMONY. 


infertur  1'^,  non  opus  esse  expectare  iit  majori  anni  parte  lii 
^‘in  parocliia  aut  dioecesi  habitarint,  sed  statim  ac  animum 
liabitandi  majori  anni  parte  iiai)entes,  incipiunt  babitare,  effici 
parocliianos,  et  posse  omnia  dicta (amongst  which,  assisting 
at  their  marriage  is  included)  erga  illos  exerceri.  Sicut  enim 
^‘ad  domiciliuni  nullius  temporis  habitatio  requiritur,  sed  statim 
ac  quis  incipit  habitare  ; cum  animo  perpetuo  habitandi,  illud 
‘‘acquirit.  . . sic  statim  ac  quis -incipit  habitare  animum  habens 
habitandi  toto  tempore  requisite,  efficitur  parochianus.’^  The 
same  doctrine  is  held  by  the  Canonists.  (Of.  Barbosa  De 
Officio  Parochi,  Part  11,  c.  xxi,  n.  36,  and  many  more,  a few 
of  whom  we  shall  quote  further  on.) 

1027.  It  is,  therefore,  commonly  admitted  by  theologians 
and  canonists  that  two  things  are  necessary  and  sufficient  to 
constitute  a quasi-domicile:  1°.  That  the  person  shall  have 
the  intention  of  dwelling  in  a place  for  a notable  time ; and 
2^,  that  he  shall  have  actually  commenced  to  dwell  in  such 
place,  and  that  he  shall  have  sufficiently  manifested  his  inten- 
tion of  dwelling  there  for  a notable  time.  When  these  two 
things  concur,  the  quasi-domicile  is  acquired  at  once.  The 
animus,  being  essentially  an  act  of  the  mind,  can  only  be  known 
by  external  acts,  such  as  taking  a house,  or  apartments,  or  a 
shop  in  which  a person  is  to  dwell,  for  a teinpus  notabile.” 
The  decision  of  the  Sacred  Congregation,  quoted  by  Benedict 
XIV,  in  the  constitution,  Baucis  abhinc,’^  which  we  shall 
presently  transcribe,  proves  at  least  this  much — that  the 
actual  dwelling  of  a person  in  a place  for  a month,  in  the 
absence  of  any  sufficient  indication  that  he  is  going  to  leave 
it  soon  afterwards,  may  generally  be  regarded  as  a sufficient 
external  manifestation  of  his  intention  to  remain  there  for  a 
notable  time.  But  supposing  that  the  intention  must  in  this 
case  extend  beyond  a month,  the  marriage  would  be  invalid 
unless  such  intention  actually  existed  j for  the  mere  external 
indication  would  not  supply  the  intention,  any  more  than  the 
former  indications,  such  as  taking  a house  for  six  months, 
would,  supposing  the  person  only  intended  to  remain  in  the 
place  until  he  should  succeed  in  getting  married. 

1028.  We  say  an  intention  of  remaining  for  six  months 
would  certainly  suffice,  but  we  do  not  say  that  it  should 
necessarily  extend  to  so  long  a period.  Schmalzgrueber, 
with  many  other  canonists  of  great  authority,  thinks  that  a 
few  {aliquot)  months  may  be  considered  a tempus  nofabile 
anni,  and  that  therefore  the  intention  of  remaining  for  this 


ON  THE  SACRAMENT  OF  MATRIMONY. 


495 


period  will  suffice.  Conforinius  autera  juri  sentire  videntur 

qui  dicunt,  sufficere  propositum  Labitandi  per  aliquot  menses, 

praecipue  si  domus,  conclave,  taberna,  etc.,  fuerunt  conducta.’^ 
(ScLmalzgrueber,  lib.  ii,  tit.  ii,  n.19.)  Who  adds : Nullum 
‘Wero  diibium,  conditionibus  hisce  verificatis  statim  post 

hahitationem  acceptam  quasi  domicilium  acquiriP  The 
opinion  that  the  quasi- domicile,  the  requisite  conditions  being 
ol)served,  is  acquired  at  once,  is  taught  by  Barbosa  de  Parocho 
(p.  2,  c.  xxi,  n.  35),  by  Giraldi,  Sanchez,  et  aliis  passim  j so 
that,  as  already  stated,  we  regard  it  as  practically  certain  that 
a person  actually  dwelling  in  a place  with  the  intention  of 
continuing  to  dwell  there  for  six  months,  who  has  sufficiently 
manifested  that  intention,  may  be  married  before  the  parish 
priest  of  that  place,  immediately  after  he  has  commenced 
to  dwell  in  it. 

1029.  Nor  is  this  opinion  opposed  to  the  teaching  of 
Benedict  XIV,  in  the  constitution,  Paucis  abhinc,’’  in  which 
he  says : “Post  hsec  necessarium  fore  censemus  nonnihil 
“ adjungere,  ut  in  propatulo  sit  quidnam  requiratur  ad  quasi 
“domicilium  adipiscendum.  Veruni  hac  in  re  non  ^alio 
“pacto  responderi  potest,  nisi  quod  antequam  matrirnonium 
“ contrahatur,  sqoatio  saltern  unius  mensis  ille,  qui  contrahit, 
“ habitaverit  in  loco  ubi  matrirnonium  celebratur.’^  Because, 
the  Pontiff  adds  : “ Definitiones  Cong.  Cone,  hac  de  re  ob- 
“servari  poterunt  apud  Fagnanum  in  cap.  Signijicavit  de 
“ ParocliiSj  ubi  eorundem  contextu  perpenso,  hsec  habet  sub. 
^^num.  39.  Vir  et  mulier  Trajectenses  timentes  impedimentum 
“a  parentibus,  cum  ad  vicinam  urbern  Aquisgranum  se 
“ contulissent,  et  ibi  aliquamdiu  morati  matrirnonium  con- 
“traxissent.  Sacra  Oongregatio,  consulta  super  validitate, 
“ censuit,  exprimendum  tempus  quo  contrahentes  Aquisgranae 
“ manserunt  j quod  si  fuerit  saltern  unius  mensis,  dandam  esse 
“ decisionem  pro  validitate ; alias  de  novo  referendum  in 
“ congregatione.^^  From  these  last  words,  which,  though  given 
by  Fagnan,  from  whom  Benedict  XIV  has  taken  the  decision, 
are  strangely  omitted  by  the  Pontiff,  it  is  clear  that  the  Sacred 
Congregation  did  not  regard  the  previous  residence  of  a 
month  as  absolutely  necessary,  provided  it  should  be  proved 
from  other  circumstances  that  the  parties  had  manifested  their 
intention  of  residing  per  temyus  notahile  in  the  place  where 
the  marriage  took  place. 

1030.  It  is  clear  also  from  wdiat  the  Pontiff  adds,  immedi- 
^ ately  after  quoting  the  decision  of  the  Sacred  Congiegation, 


496 


ON  THE  SACRAMENT  OF  MATRIMONY. 


that  he  did  not  regard  a month’s  previous  residence  as  abso- 
lutely necessary  to  constitute  a quasi-domicile  in  ordine  ad 
mat.  contraliendum : ‘‘Natalis  Alexander/’ says  the  Pontift' 
(in  Theol.  Dog  et  Moral.,  lib.  ii,  De  Sac.  Mat.,  c.  ii,  a.  ii,  Regul. 
6),  “ animadvertit,  ad  acquirendum  quasi  domicilium,  oportere 
“ ut  contrahentes,  antequam  matrimonium  celebrent,  tanto  tern- 
^^pore  eo  in  loco  ubi  copulantur,  fuerint  commorati,  ut  ibidem 
“ cogniti  jam  sint,  atque  perspectV^  In  this  passage  there  is  no 
mention  of  a month’s  previous  residence  being  necessary,  but 
only  that  the  parties  should  have  resided  in  the  place  where 
the  marriage  is  to  be  contracted  for  a period  long  enough  to 
make  them  well  known  in  it.  It  is  clear  that  a previous 
residence  regarded  in  this  light  concerns  the  lawfulness  rather 
than  the  validity  of  the  marriage ; for  it  is  equally  applicable 
to  all  strangers,  whether  they  come  to  a strange  place  to 
reside  permanently  or  only  temporarily  in  it.  And,  in  fact^ 
although  Natalis  Alexander,  in  the  Rule  quoted  by  the 
Pontiff,  treats  the  question  of  quasi-domicile,  yet,  in  the  little 
paragraph  which  he  adds  at  the  end,  to  which  the  Pontiff 
alludes,  he  clearly  includes  the  domicile  as  well  as  quasi- 
domicile. His  words  are  : “ Observari  tamen  oportent  statuta 
“ moresque  Dioecesium  quoad  tempos  constituendo  domicilio, 
“ seu  domicilii  juri  acquirendo,  ad  effectum  matrimonium  con- 
“trahendi  praefixum.  Eo  certe  tempore  contrahentes  in 
“ Parochia  mansisse  necesse  est,  quod  sufficiat  ut  ibi  noti  sint.” 
These  words  certainly  apply  to  all  strangers,  whether  they 
acquire  a domicile  or  a quasi-domicile,  and  regard  the  licitness 
rather  than  the  validity  of  their  marriages. 

1031.  The  next  question  is,  whether  a month’s  residence 
in  a place  is  sufficient  to  render  valid  all  marriages  contracted 
after  the  lapse  of  this  period,  although  the  parties  intend  to 
return  to  their  former  domicile  immediately  afterwards.  Car- 
riere  (n.  1285),  and  the  author  of  the  Prcelectiones  Juris 
Canonici  habitce  in  Seminario  S.  SuJpitii  (pars  i,  a.  3,  n.  244), 
Gury  (n.  846,  who,  however,  excludes  the  case  of  parties  who 
reside  in  the  country  for  the  purpose  of  recreation,  or  ad  negotia 
ruralia  agenda)^  hold  that  the  residence  of  a month  in  any 
place  is  sufficient  per  se  to  render  valid  a marriage  contracted 
after  the  lapse  of  this  period.  But  all  these  rely  on  the 
authority  of  Benedict  XIV,  in  the  constitution,  “Paucis  ab- 
“ hinc,”  and  on  another  decision  confirmed  by  Gregory  XVI, 
which  is  as  follows  : — 

“Joannes  et  Maria,  Mechlinise  domicilia  habentes,  Lon- 


ON  THE  SACRAMENT  OF  MATRIMONY. 


4-97 


dinura  veniiint,  et  sine  anctoritate  vel  licentia  siiornm  paro- 
^^ch(3rura,  nno  solummodo  mense  elapse,  Londiiii  matrimoninm. 
“contrahunt.  Quaeritiir  utrura  hoc  matrimoninm  invalidum  sit 

propter  decretum  Cone.  Trid.  (Sess.  24,  cap.  i,  de  ref.  Mat.) 

necne. 

‘‘Feria4^  die  6*  Decemhris,  1842,  Sanctissimns  D.  N.  Div. 
‘^Provid.  Gregorius  Papa  XVI,  in  solita  audientia  R.  P.  D. 
^‘Assessori  S.  Officii  impertita,  audita  relatione  suprascriptse 
“ epistolse  una  cum  EE.  et  RR.  DD.  Cardinalium  Gen.  Inq. 
^‘suffragiis  dixit:  Stet  Epistola  Bened.  XIV  ad  Archiep. 
“Goanum.”  {Melanges  Tlieologiques,  vol.  ii,  p.  451.) 

1032.  As  far,  therefore,  as  this  last  decision  concerns  the 
matter  of  which  we  are  speaking,  it  is  clear  that  it  adds 
nothing  to  the  decision  of  Benedict  XIV,  which  we  have 
already  considered,  concerning  the  necessity  of  an  actual  pre- 
vious residence  of  a month  being  necessary  in  order  to 
acquire  a quasi-domicile.  Xow,  in  reference  to  this  whole 
matter,  it  is  clear  that  Benedict  XIV  does  not  make  any  new 
law,  but  merely  undertakes  to  exemplify  the  law  of  clandes- 
tinity,  from  the  decree  of  Urban  VIII,  and  the  decision  of 
the  Sacred  Congregation  in  the  Utrecht  case;  because  he 
expressly  avoids  entering  into  the  question  of  the  quasi-domi- 
cile, and  refers  the  reader  to  the  decisions  contained  in  Fagnan, 
and  especially  to  the  Utrecht  case.  Then,  in  the  end  of  the 
paragraph,  he  adds : Dubitari  autem  posset,  num  ad  quasi 
“domicilium  acquirendum  matrimonii  causa,  uti  diximus,  non 
“solum  requiratur  praecedens  habitatio,  verura  etiam  subsequens 
“ ad  aliquod  temporis  spatium  : verum  cum  observaverimus, 
“subsequentem  habitationem  ab  iis  auctoribus,  qui  hanc 
“ tractarunt  materfam,  tanquam  magni  momenti  adminiculiun 
“ reputari,  ut  novum  domicilium  queesitum  dicatur,  nihil  vero  de 
“ilia  praescriptura  fuisse  a Cone.  Congreg.  in  adducta  paulo 
“ ante  definitione  penes  Fagnanum,  nolumus  de  liac  re  quid- 
“ quam  novi  decernereP 

1C33.  Let  us,  therefore,  consider  what  has  been  decided  in 
the  Utrecht  case.  This  being  a particular  case,  we  cannot 
arrive  at  a certain  conclusion  without  knowing  all  the  circum- 
stances. Xow,  in  order  that  this  case  should  prove  that  a 
month’s  residence  in  a place  is  sufficient  to  constitute  a quasi- 
domicile, in  which  marriage  may  be  validly  contracted,  we 
should  know,  1st,  that  the  parties  had  not  abandoned  their 
former  domicile;  and  2dly,  that  they  intended  to  return  to 
their  former  domicile  immediately  after  the  lapse  of  a month. 


498 


ON  THE  SACRAMENT  OF  MATRIMONY. 


Because,  if  they  did  not  intend  to  return  to  their  former 
domicile  at  all,  or  intended  spending*  a considerable  time  at 
Aix-la-Chapelle,  where  the  marriage  was  contracted,  which  is 
extremely  probable,  from  the  circumstance  that  they  had  fled 
from  their  parental  abode  to  avoid  the  opposition  of  their 
parents  to  the  mari  iage,  the  fact  of  the  marriage  contracted 
at  Aix-la-Chapelle,  after  a month’s  residence  in  that  place, 
having  been  pronounced  valid,  would  prove  nothing  as  to  a 
month’s  residence  being  per  se  sufficient  to  constitute  a quasi- 
domicile, or  habitation  in  ordine  ad  matrimonium.  It  is  also 
remarkable  that  Benedict  XIV  (Inst,  xxxiii,  n.  9),  referring 
to  this  very  case  and  some  others,  makes  the  following  com- 
ment: Advertendum  tamen  est  matrimonium  hoc  pacto 

ineuntes,  antequam  rem  perficerent,  domicil ium  in  eo  loco  vel 
quasi  domicilium  assecutos  fuisse.  Xam  diu  morati  ibidem 
^‘ante  matrimonium  fuerunt,  neque  inde  postea  decesserunt,  lit 
primam  sedem,  ac  domicilium  repeierent^  quernadmodum  Cle- 
“ ricatus  recte  perpendit.” 

1034.  Secondly,  Fagnan,  on  whose  authority  the  authen- 
ticity of  this  decision  rests,  does  not  himself  draw  the  con- 
clusion from  it  that  a month’s  residence  is  sufficient  to 
constitute  a quasi-domicile.  The  question  he  discusses  is 
this : A woman  was  banished  by  order  of  a secular  prince 
from  the  city  in  which  her  domicile  was,  on  account  of  her 
scandalous  life,  and  she  was  commanded  to  reside  in  another 
place  during  the  prince’s  pleasure.  After  four  months’ 
residence  in  her  new  abode  (which  she  was  clearly  resolved 
to  leave  and  return  to  her  former  domicile,  wlid^iever  the 
prince  should  permit  her  to  do  so),  she  contracted  marriage 
before  the  parish  priest  of  her  present  residence  with  a man 
who  had  his  domicile  in  the  city  from  which  she  had  been 
banished.  The  question  was,  had  this  marriage  been  con- 
tracted so  as  to  fulfil  the  forms  prescribed  by  the  Council  of 
‘Trent  in  the  decree  already  cited  f (Fagnan,  loc.  cit.,  n.  29.) 
Then,  having  adduced  many  opinions  regarding  the  things 
required  to  render  a stranger  a parishioner,  so  that  the  parish 
priest  of  the  place  where  he  actually  dwells  can  administer  to 
him  the  sacraments  and  assist  at  his  marriage,  he  approves  of 
the  opinion  which  holds  that,  when  a person  goes  to  a parish, 
not  merely  for  recreation  or  some  other  temporary  cause,  but 
to  reside  there,  he  becomes  immediately  a parishioner  of  that 
parish.  This,  he  says,  is  not  only  the  more  common  and 
true  opinion,  "but  also  the  most  equitable  in  the  case  of  the 


ON  THE  SACRAMENT  OF  MATRIMONY. 


499 


woman  who  was  forced  to  live  in  a city  at  a distance  from 
that  in  w^hich  she  had  her  domicile  (nn.  31,  32.) 

1035.  “Non  obstat,”  ait,  “quod  bsec  mulier  non  habuerit 
“ animum  in  dicto  oppido  perpetuo  morandi.  Quoniam  satis 
“ est  ut  habuerit  animum  morandi  quamdiu  necessitas  et  jussus 
^^principis  durarent : nam  et  hi  qui  pestis  aut  belli  causa  alio 
“ divertunt,  non  habent  animum  illic  manendi,  nisi  quoad 
“duraverit  necessitas.  . . . Ad  hoc  enim  ut  dictum  est,  jura 
“ non  considerant  domicilium,  sed  simpUceni  habitationem,  et 
“ satis  est,  ut  causa  submovendi  scandalum,  ob  quam  princeps 
“jussit  mulierem  alio  transferri,  non  fuerit  tabs,  ut  potuerit 

probabililer  inconiinenter  cessare.  . . . Secus  si  per  transi- 
“ turn  alicujus  exercitus  transeuntis  hostiliter  per  comitatum 
“ quis  contulisset  se  ad  civitatem.  . . . Nam  priino  casu  venit 
“ animo  commorandi ; secundo  non  ” (n.  34).  He  then  cites 
various  d(!cisions  of  the  S.  0.  The  first  case  concerned  the 
marriage  of  a noble  youth  who  resided  at  Sienna.  He 
wished  to  marry  a harlot,  who  also  resided  at  Sienna;  but 
fearing  that,  if  he  attempted  to  marry  her  at  Sienna  accord- 
ing to  the  form  prescribed  by  the  Council  of  Trent,  his 
friends  would  interpose,  he  went  to  Rome,  where,  having 
remained  for  some  time  (aliquantisper),  he  contracted  mar- 
riage with  the  harlot  before  the  parish  priest  of  St.  Anastasia, 
in  which  parish  they  resided  at  the  time ; and  this  marriage 
was  declared  to  be  valid  by  the  S.  0.,  “because  he  is  the 
^^proprius  parocJius  in  whose  parish  the  contracting  parties 
“ dwelt  at  the  time  when  the  marriage  took  place.’^  And  the 
Congregation,  being  consulted  generally : “ An  proprius 
“parochus  quis  dicatur,  in  cujus  parochia  contrahentes  habi- 
“ tant  tempore  quo  matrimonium  contrahitur.  Respondit  ita 
“dici  ” (n.  36). 

1036.  Afterwards, the  example^  he  continues,  of 
the  decision  given  in  the  Sienna  case,  the  S.  C.  declared  to 
be  valid  the  man’iage  of  a student,  who,  fearing  opposition 
from  his  parents,  remained  five  or  six  months  in  the  city 
where  his  university  was  situated,  and  there  contracted  mar- 
riage with  a girl  of  inferior  condition  before  the  par’sh  priest 
of  the  parish  in  which  he  resided.  The  next  case  was  that 
of  two  persons,  who,  fearing  opposition  from  their  parents, 
came  to  England,  and  contracted  there  before  the  parish 
priest  of  the  parish  in  which  they  resided  for  some  time 
(ali(piantisper).  Finally,  Fagnan  adduces  the  Utrecht  case, 
and  from  all  these  concludes  as  follows:  “Ex  quibus  non 


500 


ON  THE  SACRAMENT  OF  MATRIMONY. 


videtur  dubitandnm  qnominus  validurn  sit  prsesens  matri- 
contractum  corara  parocbo  habitationis  post 
quartum  habitationis  mensem.  Et  in  banc  sententiam  S.  0. 
respondit.’’ 

1037.  Now,  it  will  be  observed,  1°,  that  the  word  quasi- 
domicile,  with  which  w^e  are  now  so  familiar,  does  not  occur 
either  in  the  decisions  of  the  S.  C.,  or  in  the  comments  of 
Eagnan.  According  to  these  decisions,  a person  could  become 
a parishioner,  in  orcUne  ad  matrimonium,  not  only  by  acquiring 
a domicile,  but  by  a residence  in  the  parish  for  some  time, 
even  though  he  bas  the  intention  of  returning  afterwards 
to  his  former  domicile. 

1038.  2°.  That  in  all  these  cases  the  parties  either  left 
their  domicile,  or  did  not  return  to  it  until  they  contracted 
marriage,  because  they  feared  that  ilieir  parents  ivoidd  oppose 
their  marriage. 

1039.  3°.  That  it  is  never  stated  in  any  of  the  decisions 
that  a residence  of  a month  per  se  sufficient,  for  this  period 
is  only  mentioned  in  one  decision,  whilst  in  two  others  a 
period  of  four,  of  five,  or  six  months  is  mentioned ; and  in 
two  others  a residence  for  some  time,  no  definite  period  being 
mentioned,  is  declared  to  have  been  sufficient. 

1040.  4°.  That  in  the  decisions  of  Urban  VIII,  and  in 
many  decisions  of  the  S.  0.,  the  word  domicile  comprises  not 
only  a permanent  residence,  but  also  such  temporary  residence 
in  a place  as  will  enable  parties  to  contract  marriage  validly 
before  the  parish  priest  of  the  parish  in  which  they  reside. 
We  have  already  quoted  the  decisions  of  Urban  VIII,  and  a 
decree  of  the  S.  C.,  which  is  given  by  Benedict  XIV,  in  the 
constitution,  Paucis  abhinc  hebdomadis,”  in  which  both  the 
Pope  and  the  Congregation  declare  null  a marriage  contracted 
“ coram  parocho  loci,  ubi  contrahentes  reperiuntur  non  animo 
^Cbi  domicilium  contrahendi.’’  In  the  decisions  cited  by 
Fagnan,  what  we  call  quasi-domicile  is  called  a habitation. 

]'041.  5^.  That  Benedict  XIV,  and  the  other  theologians 
who  distinguish  between  a domicile  and  a quasi-domicile, 
never  add  any  third  mode  by  which  a person  may  become  a 
parishioner  in  ordine  ad  matrimonium  contrahendiun.  On  the 
contrary,  Benedict  XIV  distinctly  calls  the  month’s  residence 
mentioned  in  the  Utrecht  case  a quasi-domicile:  “Post  hjec,” 
ait,  “ necessarium  fore  censemus  nonnihil  adjungere,  ut  in 
“ propatulo  sit  quidnara  requiratur  ad  (piasi  domicilium  adipis- 
“ cendum.  Verum  in  hac  re  non  alio  pacto  responder!  potest, 


ON  THE  SACRAMENT  OF  MATRIMONY. 


501 


nisi  quod  antequam  niatrimonium  contraliatur,  spatio  saltern 
uni  us  mensis  ille,  qui  contrahit/^  etc.  He  then  quotes  the 
Utrecht  case,  and  adds:  Dubitari  autem  potest,  num  ad 
([uasi  domiciliuni  acquirendurn  matrimonii  causa,  uti  diximus, 
non  solum  requiratur  prsecedens  habitatio,’’  etc. 

1042.  6^.  Consequently  that  Carriere,  and  those  who  follow 
him,  in  making  a simple  habitation  distinct  from  a quasi- 
domicile, are  totally  deceived,  because,  as  far  as  the  validity 
of  marriage  is  concerned,  they  mean  one  and  the  same  thing. 
For  the  same  reasons  it  also  follows  that  nothing  can  be 
deduced  in  favor  of  a month’s  residence  previous  to  the 
celebration  of  marriage  in  any  place  being  se  sufficient  to 
render  the  subsequent  marriage  valid.  Because  Carriere,  and 
those  who  agree  with  him,  rely  entirely  on  the  Utrecht  case, 
and  the  constitution,  ‘‘  Paucis.’^  Now,  we  have  already  shown 
that  tliej^  are  entirel}^  wrong  in  distinguishing  a simple 
residence  in  orcline  ad  niatrimonium  from  a quasi-domicile. 
Nor  does  Benedict  XIV  ever  affirm  that  a month’s  residence  is 
per  se  suflffeient  to  constitute  a residence  or  quasi-domicile  for 
marriage.  On  the  contrary,  the  Pontiff'  expressly  declares 
that,  as  the  authors  who  have  written  on  the  subject  lay  great 
stress  on  the  subsequent  residence  as  magni  moinenti  admini- 
culum,  he  will  make  no  new  decree  on  this  head.  Nor  does 
the  decree  of  the  S.  C.  settle  anything  on  the  question  that  a 
month’s  residence  is  per  se  sufficient  to  render  a marriage 
subsequently  contracted  valid,  but  simply  that  in  the  Utrecht 
case  this  was  sufficient.  It  only  follows: — 

1043.  7°.  That  a month’s  habitation  is  sufficient  to  render 
the  subsequent  marriage  valid  positis  ponendis,  that  is,  when  it 
is  such  as  to  constitute  a quasi-domicile  j and,  consequently, 
as  the  words,  quasi-domicile^  and  habitation^  and  simple 
habitation^  are  used  by  canonists  and  theologians  to  express 
the  same  thing,  the  IIol}^  See  was  perfectly  justified  in  leaving 
the  words,  quasi-domicile  and  simple  habitation,  sufficient  to 
constitute  a quasi-domicile  in  ordine  ad  mairimonium,  as  it 
has  done,  in  the  Acts  of  two  French  Provincial  Synods ; 
because,  as  we  have  shown,  where  there  is  question  of  a 
residence  sufficient  to  make  a person  a parishioner,  in  ordine 
^‘ad  niatrimonium  contrahendum,’’  these  words  mean  exactly 
the  same  thing,  and  it  is  perfectly  true  that  either  a quasi- 
domicile or  a simplex  habitation  positis  qmiendis,  is  sufficient 
to  enable  a person  to  marry  in  presence  of  the  parish  priest  of 
the  place. 


502 


ON  THE  SACRAMENT  OF  MATRIMONY. 


1044.  8°.  That,  to  acquire  a quasi-domicile  or  habitation 
m online  ad  matrimonium,  both  the  intention  and  the  fact,  or 
actual  residence,  are  necessary.  It  is  not  enough  that  a person 
intends  to  reside  for  a tempus  notabile”  in  a place,  or  that 
he  has  taken  a house  for  six  months  or  a year,  and  furnished 
it.  He  must  have  actually  commenced  to  reside  there  as  in 
his  dwelling-place ; and  he  must  also  have  the  intention  of 
making  it  his  dwelling -place  for  a notable  period.  Hence  it* 
lias  frequently  been  decided  that  a person  who  goes  to  the 
country  for  recreation,  or  to  transact  business,  or  for  any  other 
temporary  cause,  or  for  the  purpose  of  contracting  marriage, 
and  not  of  acquiring  a domicile  or  quasi-domicile,  cannot 
marry  validly  there.  Hence,  if  Bertha,  even  though  she  be 
already  engaged  to  be  married  to  Cains,  goes  on  a visit  to  a 
friend  to  a lodging  in  the  country  to  recruit  her  health,  or 
takes  apartments  in  a neighboring  town  by  the  week  or  fort- 
night, in  order  to  prepare  dresses,  etc.,  but  without  the  inten- 
tion of  ac<|uiring  a residence  in  these  places,  although  her 
stay  may  be  unexpectedly  protracted  from  time  to  time  until 
a period  of  one,  two,  three,  or  even  six  months  has  elapsed, 
she  cannot  contract  marriage  in  the  place  where  she  is  stay- 
ing, because  she  never  intended  to  acquire  a habitation  (quasi- 
domicile) in  that  place. 

1045.  9°.  But  the  question  is,  if  she  takes  a house  or 
lodgings  in  town  or  country,  still  retaining  her  proper  domi- 
cile, how  long  must  she  intend  to  dwell  in  the  place  in  order 
to  acquire  a residence  sufficient  for  marriage?  1°.  Is  a 
montlfs  residence  previous  to  the  marriage  necessary?  2°. 
Is  it  sufficient,  if  she  intends  to  marry  at  the  expiration  of  the 
month,  and  leave  the  place  immediately  afterwards?  To  the 
first  question  we  answer:  that,  if  she  has  taken  a house  or 
lodgings  for  five  or  six  months,  and  bound  herself  to  pay  rent 
for  that  time,  she  can  be  married  in  that  place  at  once,  if  she 
took  the  house  or  lodgings  before  she  was  engaged  to  be 
married;  because  she  acquired  a quasi-domicile  the  moment 
she  commenced  to  reside  in  that  parish,  for  her  intention  of 
remaining  there  for  a tempus  notabile  was  sufficiently  mani- 
fested by  the  circumstances  we  have  mentioned.  And  in  this 
ease  the  marriage  would  be  both  licit  and  valid,  even  though 
she  changed  her  mind  before  the  marriage  took  place,  and 
intended  after  her  marriage  to  reside  in  a difiereut  parish  with 
her  husband ; because,  when  a domicile  or  quasi-domicile  is 
once  validly  acquired,  it  is  only  lost  by  the  intention  and  the 


ON  THE  SACRAMENT  OF  MATRIMONY. 


503 


fact.  Neither  the  fact  of  a absence,  whilst  the  intention 
of  returning  to  the  place  tanquam  in  locum  domicilii  aut  quasi 
domicilii  remains,  nor  the  intention  of  leaving  the  place,  so 
long  as  the  person  continues  to  actually  reside  In  it,  deprives 
him  of  either. 

1046.  lO'^-  But  if  she  were  engaged  to  be  married  before 
she  took  the  house  or  lodgings  for  five  or  six  months,  other 
circumstances  should  be  taken  into  consideration.  If  she  took 
the  place  as  a residence  both  for  herself  and  her  husband,  or 
if  the  marriage  were  not  to  take  place  for  five  or  six  months, 
we  think  her  intention  of  residing  in  the  place  for  a tempos 
^^notabile’^  would  be  sufficiently  manifested ; and  therefore 
that,  not  only  in  the  first,  but  even  in  the  second  case,  she 
could  contract  validly  coram  paroclio  loci,  if  for  some  unfore- 
seen cause  it  should  be  considered  expedient  to  solemnize  the 
marriage  at  an  earlier  period.  For  instance,  if,  on  account  of 
urgent  business,  the  sponsus  should  be  unexpectedly  obliged 
to  go  to  America  or  Australia,  we  think  the  marriage  could 
be  validly  contracted  at  once  before  the  parish  priest  of  the 
place  where  the  girl  resided,  whether  she  intended  to  remain 
on  in  it  or  to  accompany  her  husband,  because,  having  already 
acquired  a sufficient  residence,  she  w^ould  not  lose  it  until  she 
actually  ceased  to  dwell  in  it. 

1047.  1 But  if  she  onl}^  took  the  lodgings  by  the  week, 
with  accommodation  for  both  herself  and  her  intended  hus- 
band, even  though  she  declared  that  she  would  reside  there 
for  six  months,  after  which  she  would  leave  it,  we  think  the 
intention  of  remaining  there  for  a tempus  notabile  ” would 
not  be  in  many  cases  sufficiently  maniiested,  at  all  events 
until  she  should  have  dwelt  for  some  time  in  the  place.  It  is 
supposed  tliat  she  retains  her  former  domicile,  and  that  her 
intended  husband  does  not  reside  in  the  parish  where  she 
lodges,  but  in  some  other  parish  : for,  in  either  of  these  cases, 
the  marriage  would  be  valid  for  other  reasons.  But,  we  say, 
supposing  the  validity  to  depend  on  the  sufficiency  of  her  own 
residence,  the  intention  of  remaining  for  a “ tempus  notabile 
would  not  generally  be  sufficiently  manifested  from  the 
beginning.  But  after  the  lapse  of  a fortnight  or  a month  this 
might  be  clear : as,  if  she  had  made  permanent  improvements 
at  her  own  expense,  had  got  paper  put  on  the  walls,  got  the 
doors  and  windows  painted,  purchased  furniture  specially 
suited  to  the  place,  or  furnished  it  in  a manner  suitable  to 
carry  on  her  own  trade  or  calling.  All  this  might  be  made 


504 


ON  THE  SACRAMENT  OF  MATRIMONY. 


manifest  in  a fortnight  or  in  a month^  or  it  might  require  the 
lapse  of  two  or  three  months  to  make  it  so. 

1048.  ]2°-  The  same  is  to  be  said  of  servants,  clerks,  and 
others,  who  are  engaged  by  the  week,  month,  or  quarter  j for, 
if  they  are  engaged  by  the  half-year  or  year,  they  can  be 
married  as  soon  as  they  commence  to  reside  in  the  place 
where  they  are  employed.  If  the  engagement  be  in  the 
former  case  for  a period  of  a week,  montli,  or  quarter,  at  the 
expiration  of  which  they  are  definitely  to  leave  the  place,  they 
cannot  (supposing  the  month’s  residence  to  be  insufficient) 
contract  marriage  in  that  place  at  all  during  the  periods 
mentioned.  But  if  the  engagement,  although  entered  into  by 
the  week,  month,  or  quarter,  is  not  understood  to  terminate 
definitely  after  the  lapse  of  the  above  periods,  but  only  that 
the  servant  may  leave  if  he  does  not  like  the  place,  or  that 
the  master  may  dismiss  him,  we  think  that  if  the  servant 
shall  continue  to  reside  in  the  place  without  interruption, 
then,  as  soon  as  circumstances  render  it  morally  certain  that 
he  will  continue  to  reside  for  a tempiis  notabile,  he  will  have 
contracted  a quasi-domicile  in  ordine  ad  matrimonmm.  Thus, 
if  after  the  lapse  of  a month  or  two  the  master  appoints  a 
servant  engaged  by  the  quarter  to  a permanent  office,  which 
he  accepts,  with  the  intention  of  remaining  for  an  indefinitely 
long  period,  or  even  for  a second  quarter,  we  think  he  has  a 
quasi-domicile.  The  same  we  hold  to  be  true,  if  at  the  expi- 
ration of  the  quarter  the  engagement  be  renewed  without  the 
servant  having  given  up  his  residence,  because  he  never  in- 
tended to  leave  at  the  end  of  the  quarter,  and  the  continuance 
of  the  engagement  comprises  a tempns  notabile,  and,  conse- 
quently, immediately  after  the  new  engagement,  he  acquires 
a quasi-domicile.  So,  also,  when  the  servant  who  has  been 
engaged  by  the  month  continues  in  the  service  for  two  or 
three  months,  and  all  the  circumstances  indicate  that  he  will 
lemain  in  the  place  for  a considerable  time,  as  soon  as  this 
becomes  morally  certain,  he  acquires  a quasi-domicile.  The 
same  is  to  be  said  of  the  servant  engaged  by  the  week.  In 
all  these  cases  a certain  period  must  elapse  before  the  person 
acquires  a quasi-domicile  ; not  because  this  is  necessary  se 
for  this  purpose,  but  because  in  the  circumstances  the  inten- 
tion of  remaining  in  the  place  for  a tempns  notabile  is  not  at 
once  manifest.  But  if  the  engagement,  either  by  the  pro- 
visions of  the  law,  or  by  express  contract,  be  entered  into  for 
half  a year,  or  for  any  longer  period,  the  person  acquires  a 


ON  THE  SACTlA^klENT  OP  MATRIMONY. 


505 


quasi- domicile  from  the  moment  he  commences  to  dwell  in 
the  place. 

1040.  Now,  from  these  observations  we  think  we  can 
explain  the  decisions  of  the  S.  C.  In  all  those  cases  cited 
by  Fagnan,  in  which  the  persons  left  their  home,  or  stayed 
away  from  it,  to  avoid  the  opposition  which  they  knew  or 
feared  their  parents  would  make  to  their  marriage,  for  the 
purpose  of  getting  married  in  a different  place,  and  of 
returning  afterwards  to  their  native  parish, — no  doubt  these 
persons  asserted  that  they  intended  to  reside  in  the  place  in 
which  they  wished  to  get  married,  for  a tempos  notabile,” 
because  in  the  Utrecht  case  the  parties  did  actually  reside  a 
considerable  time  in  Aix-la-Chapelle  after  their  marriage, 
which,  with  the  month  they  had  lived  there  before  it,  showed 
their  intention  of  remaining  there  for  a tempos  notabile,  and 
because,  as  Benedict  XIV  says,  the  authors  who  had  written 
on  the  matter  of  quasi-domicile  considered  a subsequent  resi- 
dence a great  adminiculum  in  favor  of  its  validity.  Now, 
this  adminiculum  could  not  directly  affect  the  marriage,  which, 
if  it  were  invalid  at  the  time  it  was  contracted,  would  not  be 
made  valid  by  a subsequent  residence.  It  was,  therefore,  a 
great  adminiculum  in  support  of  the  assertion  of  the  parties 
that  they  came  there,  not  for  the  mere  purpose  of  getting 
married,  but  to  acquire  a quasi-domicile  by  residing  in  it  for 
a notable  time. 

1050.  14'^.  But  it  may  be  said  truly  that  the  S.  C.  did  not 
inquire  in  the  Utrecht  case  as  to  the  subsequent  residence  of 
the  parties  in  Aix-la-Chapelle.  AVe  therefore  infer  that  the 
S.  C.  must  have  known  this  circumstance,  otherwise  the 
answer  should  have  been  (in  the  opinion  of  those  very  theo- 
logians who  maintain  the  sufficiency  of  the  month's  residence, 
and  who  hold  the  marriage  had  been  declared  valid  on  this 
ground)  that,  if  the  parties  had  resided  at  Aix-la-Chapelle 
for  an  entire  month  before  the  marriage,  it  was  invalid,  for  no 
one  ever  held  that  an  actual  residence  for  a shorter  y)eriod, 
without  the  intention  of  remaining  longer,  would  be  sufficient. 
But  the  S.  C.  does  not  answer  in  this  way,  but  that,  in  case 
the  parties  had  not  resided  in  Aix-la-Chapelle  for  a month 
previous  to  the  marriage,  case  should  he  referred  to  it 
again r The  month’s  previous  residence,  therefore,  did 
not  directly  affect  the  validity  or  invalidity  of  the  marriage, 
but  the  sufficiency  of  the  manifestation  of  the  intention  of 
the  parties  to  remain  for  a tempus  notabile.  The  S.  0. 


506 


ON  THE  SACRAMENT  OF  MATRIMONY. 


considered  a month's  previous  residence  sufficient  for  this  pur- 
pose; but  in  case  they  bad  not  resided  at  Aix-la-Chapelle 
for  a month  previous  to  the  marriage,  it  desired  the  case  to  be 
referred  to  it  again,  because  the  sufficiency  of  the  intention 
might  be  inferred  from  other  circumstances,  if  this  one  were 
wanting. 

1051.  15°*  And  certainly,  in  all  cases  where  the  parties 
left  home  to  avoid  the  opposition  of  their  parents,  a grave 
suspicion  would  exist  that  they  merely  came  to  another  place 
in  order  to  get  married  there,  and  not  to  acquire  a quasi- 
domicile. Hence  we  see  that  the  S.  C.  laid  great  stress 
on  the  parties  having  resided  some  time  in  the  place  previous 
to  the  marriage ; but  no  fixed  period  was  necessary,  not  only 
because  in  some  of  the  cases  no  fixed  time  is  mentioned,  as 
we  have  shown  from  the  words,  aliquantisper  morati,  but  also 
because,  from  the  answer  in  the  Utrecht  case,  it  is  clear  that 
no  fixed  period  was  required. 

1052.  10°.  As  to  the  cases  concerning  persons  who  go  into 
the  country  for  recreation,  or  on  business,  or  for  some  other 
temporary  cause,  the  authors  who  hold  the  sufficiency  of  the 
month's  residence  are  greatly  puzzled.  Some  of  them  aie 
driven  to  the  necessity  of  saying  that  persons  who  go  to  the 
country  for  recreation,  commonly  remain  onlv  fur  a few  days. 
(See  Prcelectiones  Juris  Canonici  in  Sem.  S.  Sulpitii,  vol.  i, 
n.  244.)  But  we  respectfully  submit  that  this  is  not  the  fact, 
and  that  a great  many  families  go  to  the  country  in  summer 
time  for  one,  two,  or  three  months. 

1053.  17°.  If  the  S.  0.  acknowledged  the  validity  of  a 
marriage  contracted  anywhere  after  a month's  residence,  it 
certainly  could  not  have  made  these  general  assertions  concern- 
ing the  parochus  ruralis,  for  a great  many  persons  go  to  the 
country  for  one,  two,  or  three  months,  taking  their  whole 
family  with  them;  and,  consequently,  they  have  both  the 
intention  and  fact  of  residing  there  during  this  period. 
The  true  solution  is  this:  that  to  acquire  a quasi-domicile 
or  habitation  in  ordine  ad  matrimonium,  it  is  necessary  that 
the  parties  should  intend  to  reside  in  the  place  “per  ternpus  nota- 
“ bile  anni."  An  intention  of  residing  for  about  six  months 
is  certainly  sufficient.  But  we  think  about  live  months  con- 
Btitute  a ternpus  notabile  anni,  and  it  is  very  probable  that 
four  are  sufficient.  “ Conformius  autem  juri  videntur  sentire, 
qui  dicunt,  sufficere  propositum  habitandi  per  aliquot  menses, 
[)raecipLie  si  domus,  conclave,  taberna,  etc,,  fuerint  conducta." 


ON  THE  SACRAMENT  OF  MATRIMONY. 


507 


(Schmalz.,  lib.  tit.  ii,  n.  19.)  He  adduces  in  this  place 
8aarez,  Laymann,  and  others^  in  support  of  this  opinion.  On 
tliis  account  we  think  an  intention  of  dwelling  in  a place  for 
four  months  successively  sufficient  to  constitute  a quasi-domi- 
cile. Schmalzgruebei  adds  (loc.  cit.),  there  is  no  doubt 
when  a person  takes  up  his  residence  in  a place  where  he 
intends  to  remain  per  tempus  notahile  anni^  that  he  at  once 
{statim)  acquires  a quasi-domicile  there.  So  also  Barbosa  de 
Parocho  (p.  ii,  c.  xxi,  n.  35),  Giraldi,  Sanchez,  etc.,  cum 
communi.  We  repeat  these  passages,  as  we  consider  them 
most  important. 

1054.  18*^.  From  what  we  have  said  in  discussing  the 
necessity  of  a previous  residence,  as  far  as  the  validity  of 
marriage  is  concerned,  we  have  been  led  to  express  our 
opinion  that  a month’s  residence  per  se  is  never  sufficient  to 
constitute  a habitation  in  which  a person  can  validly  contract 
marriage,  provided  he  retains  a domicile  of  his  own,  or  a 
paternal,  fraternal,  or  other  real  domicile  elsewhere,  if  he 
intended  from  the  hrst  to  leave  the  place  immediately  after 
the  expiration  of  the  month.  We  have  shown  that  there  is 
no  decision  in  which  it  is  stated  that  a month’s  residence  is 
per  se  sufficient.  In  addition  to  this,  we  may  mention  that 
the  Bishop  of  Southwark  begged  that  his  Holiness,  Pius  IX, 
would  declare  that  the  mere  fact  of  residing  in  a place  for 
the  space  of  thirty  days  would  suffice  to  prove  and  constitute 
a sufficient  domicile  ad  effectum  contrahendi  matrimoniunij 
without  the  animus,  either  before,  or  at  the  beginning  of,  or 
during,  the  thirty  days,  contrahendi  domicilium  vel  quasi 
domkilium.  'Phis  proposition  having  been  submitted  to  the 
Holy  Office,  their  Eminences,  after  having  carefully 
examined  it,  replied,  l^on  expedire.  (See  Synods  of  the 
Diocese  of  Southwark,  p.  51.)  This  decision,  however,  only 
refuses  to  make  a new  law  by  which  the  mere  fact  of  staying 
in  a place  for  a months  without  even  the  intention  of  residing 
for  the  tvhole  or  for  any  portion  of  that  time,  would  constitute 
a quasi-domicile  in  ordine  ad  matrimonium. 

1055.  19°.  WTiat,  then,  is  to  be  said  of  the  parochus 
ruralis?  Simply  that,  as  suchy  he  can  never  validly  assist  at 
the  marriage  of  strangers  unless,  they  acquire  a domicile  or 
quasi-domicile  in  his  paiish,  supposing  them  to  have  a 
domicile  elsewdiere.  But  if  they  come  into  his  parish  with 
the  intention  of  lesidingin  it  ‘^per  tempus  notabile,”  or  make 
<q)  their  minds  to  do  so  whilst  sojourning  there,  and  make 


50S 


ON  THE  SACRAMENT  OF  MATRIMONY. 


this  intention  sufficiently  plain,. he  can  assist  at  their  marriage, 
because  he  ceases  to  be  the  “merus  parochus  ruralis,”  and 
becomes  the  parochus  (|uasi-doinicilii.” 

1056.  20°.  Idiere  were  some  other  arrangements  made  by 
Benedict  XIV,  when  Cardinal  Archbishop  of  Bologna, 
respecting  the  marriage  of  servants  and  others,  who,  besides 
a quasi-domicile  in  the  place  where  they  actually  -reside, 
have  a paternal,  fraternal,  or  other  domicile  in  a different 
parish.  When  the  domicile  and  quasi-domicile  are  in  the 
same  city,  he  orders  the  marriage  to  be  contracted  coram 
parocho  domicilii;  but  if  the  domicile  be  at  a considerable 
distance,  then  the  marriage  is  to  be  contracted  corani 
parocho  quasi-domicilii.  But  as  the  mere  distance  of  the 
places  from  each  other  cannot  change  the  nature  of  the 
residence,  it  is  quite  clear  that  the  marriage  could  be  validly 
contracted  before  either  of  the  parish  priests.  In  this  country, 
when  a person,  such  as  a servant,  has  a domicile  in  one  parish 
and  a quasi-domicile  in  another,  the  parish  priest  l)efore 
whom  the  marriage  shall  be  contracted  should  be  selected 
according  to  the  custom  of  the  diocese. 

1057.  21°.  Although  we  consider  it  extremely  probable 
that  any  period  exceeding  four  months  may  be  considered  a 
tempiis  notahile  amii,  for  the  reasons  already  given  and  for 
others  which  we  shall  now  add,  yet  we  think  it  would  be 
sinful  for  any  priest  to  act  on  this  opinion,  and  therefore  that 
he  should  practically  require,  before  assisting  at  the  marriage 
of  parties  who  have  a domicile  in  a different  parish,  that  one 
of  them  should  have  sufficiently  manifested  his  intention  of 
residing  in  the  parish  where  the  marriage  is  sought  to  be 
contracted,  for  six  months.  But  we  think  the  opinion  which 
holds  that  the  intention  of  residing  in  a place  for  a period  of 
four  or  five  months  is  sufficient,  is  strongly  confirmed  by  all 
the  recent  decisions,  in  not  one  of  which  is  the  inquiry  made 
as  to  whether  the  parties  had  the  intention  of  remaining  for 
the  greater  part  of  the  year, — a question  which  would  un- 
doubtedly have  been  put  if  the  intention  of  residing  for  this 
period  at  least  were  necessary.  It  is  useless  to  quote  on  this 
head  Sanchez  and  the  older  theologians,  who  had  not  seen  these 
decisions.  We  are  quite  aware  that  a Belgian  canonist 
has  asserted  that  he  learned,  whilst  attending  the  Vatican 
Council,  from  an  authentic  document,  that  the  metis  of  the 
Holy  See  is  that  the  intention  of  dwelling  for  the  greater  part 
uf  the  year  is  necessary.  We  confess  we  should  like  to  see. 


0^  THE  SACRAMENT  OF  MATRIMONY. 


509 


the  dccnment,  in  which,  after  all,  it  may  be  only  laid  down 
that  this  is  the  ordinary  way  of  acquiring  a quasi-domicile. 
We  are  strongh^of  opinion  that  tempus  notahile  being  a thing 
to  be  determined  ex  commimi  cestimatione^  is  not  a precisely 
determined  period.  Certainly  the  woman  whose  case  Fagnan 
treats  at  such  length,  and  whose  marriage,  contracted  after  a 
lapse  of  four  months,  was  declared  by  the  S.  0.  to  be  valid, 
had  no  intention  of  dwelling  in  the  place  for  a greater  part 
of  a year.  She  simply  intended  to  dwell  there  as  long  as 
the  prince  obliged  her  to  do  so,  and  this  intention  at  the  time 
of  the  marriage  had  comprised  four  months.  She  would 
have  left  the  next  day  had  she  obtained  leave,  and  still  the 
marriage  would  have  been  valid.  We  cannot  see  how  she 
had  manifested  her  intention  of  remaining  for  at  least  six 
months. 

1058.  22°.  The  same  remarks  apply  to  the  cases  already 
noticed,  in  which  the  marriages  were  declared  valid,  which 
took  place  where  the  parties  had  resided  for  some  time  pre- 
viously in  the  place,  nor  was  it  even  asked  whether  they  had 
intended  to  reside  there  for  the  greater  part  of  a year.  Nor 
can  it  be  objected  that  no  imjuiry  was  made  as  to  their 
intention  of  residing  per  fempiis  notahile^  V)ecause  the  necessity 
of  such  residence  was  sufficiently  declared  by  the  decisions  in 
which  it  was  laid  down,  that  persons  could  not  contract  in  a 
place  where  they  only  tarried  for  recreation  or  ad  negotla 
riiralia  agenda.  Nor  does  Benedict  XIV,  who  certainly 
knew  the  mens  Sanctce  Sedis  as  well  as  any  theologian, 
indicate,  in  any  of  his  many  writings  on  this  subject,  that 
the  intention  of  residing  per  tempus  notahile  in  any  place 
must  extend  to  the  greater  part  of  a year.  We  therefore 
think  that  the  precise  period  necessary  to  constitute  a tempus 
notabile  is  not  defined,  but  that  the  various  decisions  show 
it  must  extend  over  several  months. 

1059.  But  as  we  do  not  lay  down  this  opinion  as  certain, 
and  admit  that  practically  the  intention  should  embrace  a 
})eriod  of  six  months,  it  may  be  asked  what  use  there  is  in 
discussing  it.  We  answer,  that  it  is  of  very  great  practical 
use,  because  we  know  that  cases  have  actually  occurred,  in 
which  persons  intended  to  leside  in  the  place  whwe  they 
contracted  marriage,  from  the  first,  a little  longer  in  some 
cases  than  four,  and  in  others  than  five  months,  and  then  to 
return  to  their  proper  domicile.  Now,  we  consider  the  oi)inion 
we  have  been  advocating  so  probable,  that  such  persons 


510 


ON  THE  SACRAMENT  OF  MATRIMONY. 


should  not  be  disturbed  as  to  the  validity  of  their  marriage, 
so  long  as  the  Holy  See  shall  not  have  definitively  decided 
the  question,  because,  especially  when  there  is  question  of  the 
validity  of  matrimony : In  dubio  standum  est  pro  validitate 
actus^  seu  contractus, 

1060.  With  respect  to  prisoners,  they  are  distinguished 
into  two  classes.  Some  are  imprisoned  for  life,  or  a fixed 
term  of  punishment ; others  are  merely  kept  in  custody  await- 
ing their  trial.  It  is  decided  that  the  former  have  a sufficient 
domicile  in  the  parish  where  the  prison  is  situated ; but  that 
the  latter  have  not,  and  must  therefore  have  recourse  to  the 
parish  priest  of  the  domicile  which  they  may  have  elsewhere. 
(Inst,  xxxiii,  n.  12.)  The  reason  of  the  difference  is,  that 
persons  detained  in  custody  until  their  trial  shall  take  place 
have  no  intention  of  acquiring  a domicile  in  the  prison,  and 
are  generally  not  detained  for  a tempus  notabile;  whilst  those 
who  have  been  sentenced  to  imprisonment  for  a considerable 
period,  must  make  the  prison  their  dwelling  for  that  time. 

1061.  With  regard  to  foundlings  brought  up  or  placed  in 
public  institutions  for  the  purpose,  their  parish  priest  is  that 
of  the  parish  where  the  institutions  are.  (ibid.,  n.  14.) 

1062.  Many  of  the  difficulties  that  may  arise  regarding  the 
residence  necessary  for  contracting  marriage  are  best  solved 
in  practice  by  a reference  to  the  parish  priest,  whose  presence 
or  permission  would  certainty  be  sufficient.  Thus,  for  instance, 
if  it  be  doubted  whether  a person  has  a sufficient  quasi- 
domicile in  any  place,  all  difficulty  about  the  marriage 
would  be  removed  if  the  parish  priest  of  his  domicile  were 
referred  to  and  gave  his  consent. 

1063.  It  may  be  observed,  1^,  that,  though  a person  may 
contract  marriage  before  the  parish  priest  of  his  quasi -domicile, 
he  is  still  free  to  contract  it  before  the  parish  priest  of  his 
domicile.  (Oar.,  1284;  Bouvier,  He  Mat.,  art.  v,  § 1.) 

1 064.  2°.  That  the  presence  of  the  ordinary  (and  by  the 
ordinary  is  meant  the  bishop  or  his  vicar-general),  or  of  a priest 
authorized  by  him,  is  sufficient  for  the  marriage  of  any  one 
who  is  a subject  of  the  diocese.  (Car.,  1346.) 

1065.  We  need  hardly  observe  that  most  of  what  we  have 
said  in  this  rubric  regards  merely  the  validity  of  the  marriage ; 
because,  for  its  licitness,  the  ceremony  should  be  performed  as 
is  prescribed  in  the  Ritual. 


ON  THE  SACRAMENT  OF  MATRIMONY. 


511 


VI. 

Caveat  prjEterea  Paroch us,  ne  facile  ad  contrahendum  matrimonium 
f dmittat  vagos  ac  peregi  inos,  et  qui  incertas  habent  sedes ; neque  item 
eos,  qui  antea  conjugati  tneriint,  ut  sunt  uxores  militum,  vel  captivorum, 
vel  aliorum  qui  peregiinantur  ; nisi  diligenter  de  iis  omnibus  facta 
inquisitione,  et  re  ad  Ordinarium  delata,  ab  eoque  babita  de  ejusmodi 
ruatrimonii  celebrandi  licentia,  quae  gratis  concedatur. 

1066.  Those  who  have  no  domicile  or  fixed  residence  are 
called  ‘Wagi.’^  Even  those  who  have  but  recently  left  their 
domicile,  and  are  on  their  journey  to  another  place  where  they 
intend  to  fix  their  residence,  are,  for  the  time  being,  “ vagi.” 
A person  absent  from  his  domicile,  but  intending  to  return  to 
it,  is  a “ peregrinus.”  Such  is  the  distinction  made  by 
Benedict  XIV.  (Inst,  xxxiii,  10.)  It  is  evident  that  great 
caution  is  necessary  when  there  is  question  of  the  marriage 
of  these,  as  well  as  of  the  others  mentioned  in  the  present 
rubric;  and  nothing  can  dispense  the  pastor  from  the  obliga- 
tion of  making  diligent  inquiry  regarding  them,  as  is  here 
prescribed. 

1067.  Much  of  what  we  have  said  on  the  subject  of 
residence  under  the  preceding  rubric  applies  to  those  who 
are  peiegrini.” 

1068.  A vagus”  must  be  married  by  the  parish  priest  of 
the  place  where  he  is  for  the  time  being,  who  is  to  be  regarded 
as  the  ‘‘proprius  parochus.”  (Beiied.  XIV,  1.  c.) 

A priest  should  not  assist  at  the  marriage  of  any  vagus  ” 
until  he  has  not  only  made  diligent  inquiry  regarding  him, 
but  has  referred  the  matter  to  the  ordinary,  and  obtained 
permission  from  him.  This  is  expressly  prescribed  by  the 
Council  of  Trent;  and  the  Synod  of  Thurles  ordains  that  it 
be  strictly  observed.  (De  Mat.,  55.)  According  to  the 
common  0})inion  of  theologians,  the  priest  is  bound  to  this 
sub  gravi  (Car.,  1303;  Lig.,  1089),  though  it  is  not  required 
for  the  validity  of  the  marriage.  (Car.,  1304  ; Lig.,  1.  c.) 

1069.  The  same  thing  is  here  prescribed  in  the  case  of 
those  who  were  married  before,  and  whose  husbands  or  wives 
are  alleged  to  have  died  abroad.  The  most  careful  inquiry 
must  be  made ; and,  at  least  if  any  doubt  remains,  the  priest 
should  not  proceed  without  referring  the  matter  to  the  bishop. 
(Car.,  807.) 


512 


ON  THE  SACRAMENT  OF  MATRIMONY. 


VII. 

Antequam  matrimonium  contralialur,  ter  a proprio  contralientiiim 
Parocho  continuis  diebus  festis  in  Eeclesia  intra  Missarum  soleiiinia, 
ad  ipsius  Concilii  prsescriptum,  pubiice  denuntietur  inter  quos  matri- 
nionium  sit  contraliendiim. 

1070.  The  pnblication  of  the  banns,  or  the  announcement 
of  a marriage  about  to  take  place  between  such  and  such 
})arties,  is  here  prescribed  by  the  Ritual,  in  accordance  with 
the  decree  of  Trent.  This  was  in  use  in  some  form  from  the 
earliest  times,  but  was  not  made  a penal  law  of  tlie  Cliurch 
until  the  fourth  Council  of  Lateran,  held  in  1215.  ((Jar.,  377, 
Catalani  in  locum.)  Having  fallen  into  disuse  in  some 
countries,  it  was  renewed  in  its  present  form  by  the  Council 
of  Trent.  (CataL,  1.  c ) 

1071.  The  principal  object  of  the  law  is  to  discover  any 
impediment  which  might  prevent  a marriage  between  the 
parties;  and  there  can  be  no  doubt  that  a parish  priest  who 
fails  to  comply  with  it,  unless  he  has  obtained  a dispensation, 
is  guilty  of  grievous  sin  (Car.,  379;  Lig.,  990),  though  the 
omission  does  not  invalidate  the  marriage.  (Car.,  380.) 

1072.  According  to  the  w’ords  of  the  decree  which  are  here 
given  in  the  Ritual,  the  proclamation  must  be  made  three 
times,  on  three  continuous  festival  days.  By  these  days  are 
understood  days  on  which  there  is  an  obligation  of  hearing 
Mass,  at  least  in  the  place  where  the  proclamation  is  made. 
(Car.,  383.) 

1073.  By  continuous  is  meant,  not  that  they  should 
immediatel}'’  succeed  each  other,  as  was  formerly  the  case,  on 
Sunday,  Monday,  and  Tuesday  in  Easter  or  Pentecost  week, 
but  that  no  great  interval  should  intervene  between  them,  as 
would  ordinarily  be  the  case  if  a Sunday  or  festival  were 
allowed  to  pass  between  any  two.  (Car.,  384.) 

1074.  The  publication  must  take  place  in  the  church  and 
at  the  parochial  Mass,  which  is  to  be  understood  by  “ Missa- 
ruin  solemnia.’’  (Car.,  385,  386.)  It  would  not  suffice  if  it 
took  place  elsewhere,  or  at  a priv’-ate  Mass  at  v/hich  only  a 
few  were  present.  Where  there  are  several  Masses  that  may 
be  called  parochial,  the  banns  maybe  published  at  each; 
but  w'e  think  it  would  suffice  to  publish  them  at  any  one, 
at  all  events  at  what  is  regarded  as  the  principal  one.  In 
like  manner,  where  there  are  several  churches  or  chapels  in 
a parish,  they  may  be  published  in  each;  but  we  think  it 
would  suffice  to  publish  them  either  in  the  principal  one  or 


V 


ox  THE  SACRAMEXT  OF  MATRIMOXT.  513 

in  that  one  which  the  person  concerned  usually  attends.  (Oar., 
].  c.,  and  Bouvier,  cap.  4,  art.  2.) 

1075.  Some  maintain  that  the  banns  may  be  published  on 
any  day  or  in  any  place  where  there  is  a sufficient  concourse 
of  people,  for  the  end  of  the  law  is  thus  sufficiently  attained. 
St.  Li^uori  thinks  this  might  be  done  without  grievous  sin 
(991,  992);  but  the  words  of  the  decree  should  be  strictly 
adhered  to,  unless  in  case  of  necessity. 

107G.  The  publication  should  be  made  by  the  parish  priest, 
or  with  his  consent.  It  may  be  made  at  the  time  when  he 
usually  gives  an  instruction — after  the  Gospel,  or  after  the 
Communion,  or  any  other  convenient  time  before  the  people 
disperse. 


VIII. 

Si  vero  vir  et  mulier  ParocluEe  sint  diver.sje,  in  utraque  Parochia 
fiant  deuunliationes  : quibns  denuntiationibiis factis,  sinullum  legitirauni 
opponatnr  inipediraentum,  ad  celebratinneni  inatriiuouii  procedaiur. 
Sed  si  quid  obstat,  ultra  Parochus  non  procedal. 

1077.  If  the  parties  be  from  different  parishes,  the  banns 
are  here  directed  to  be  published  in  each  ; and  many  theo- 
logians require  the  same,  if  either  has  two  domiciles  in  two 
different  parishes,  in  the  manner  mentioned  before.  (Sect,  v.) 
In  the  case  of  “ vagi,”  they  commonly  require  the  publica- 
tion, not  only  in  the  parish  where  they  now  are,  but  in  their 
native  parish,  or  in  that  in  which  they  have  spent  longest 
time.  Also,  in  the  case  of  servants,  soldiers,  minors,  etc., 
they  require  a publication  in  the  previous  domicile,  or  the 
])arish  of  the  parents,  etc.,  according  to  circumstances.  (Car., 
389  et  seq. ; Bouv.,  1.  c.)  Such  was  the  custom  in  many 
])laces,  founded  on  the  motive  of  the  law.  Most  of  the 
difficulties,  however,  in  such  cases  are  removed  by  obtaining 
a dispensation;  but,  of  course,  the  priest  is  bound  to  make 
careful  inquiry.  After  the  publication  of  the  banns,  if  there 
be  no  canonical  impediment  or  other  obstacle,  the  marriage 
may  be  proceeded  with ; but  not,  according  to  many  theo- 
logians, till  after  the  lapse  of  at  least  one  day  from  the  last 
publication.  (Car.,  384  ; Baruff.,  123.)  Tliis'is  very  reason- 
able, considering  the  motive  of  the  law,  and  is  expressly 
prescribed  in  many  dioceses  ; but  the  rubric  does  not  seem  to 
recpiire  any  delay,  and  hence  some  maintain  that  the  marriage 
may  take  place  on  the  very  day  of  the  last  publication. 
(Busernb.  ap.  St.  Tig.,  993  ) 


514 


ON  THE  SACRAMENT  OF  MATRIMONY. 


1078.  If  the  priest  comes  to  know,  or  has  good  reason  to 
suspect,  that  an  imj)ediment  exists,  he  should  proceed  no 
farther  till  the  matter  is  cleared  up;  and  if,  after  careful 
inquiry,  a doubt  still  remains,  he  should  refer  the  matter  to 
the  bishop.  (Barutf.,  125,  126;  Oar.,  421.)  According  to  the 
common  opinion,  a single  witness  to  the  existence  of  an 
impediment  is  enough  to  prevent  the  priest  from  assisting  at 
the  marriage  (Lig.,  996 ; Car.,  422) ; but  whenever  an 
impediment  is  revealed  to  him,  he  should  be  careful  to 
require  a statement  of  it  in  writing,  such  as  would  justify 
himself,  should  his  conduct  or  his  motives  be  afterwards 
impugned. 


IX. 

Quod  si  aliquando  probabilis  fuerit  suspicio,  vel  alia  rationabilis  causa 
subsit,  arbitrio  Episcopi,  matrimouium  inalitiose  impediri  posse,  si  tot 
praecesserint  denuntiationes,  tunc  de  licentia  Ordinarii,  vel  una  tantuin 
fiat  denuntiatio,  vel  saltern  Parocho  et  duobus  vel  tribus  testibus  pne- 
sentibus,  Matrimonium  celebretur.  Deinde  ante  illius  consinnmationeni, 
denuntiationes  in  Ecclesia  fiant,  ut  si  aliqua  subsunt  impedimenta, 
facilius  detegantur,  nisi  aliter  Ordinarius  ipse  expedire  judicaverit. 

1079.  The  Council  of  Trent  leaves  to  the  judgment  and 
discretion  of  the  bishop  to  dispense,  in  whole  or  in  part,  from 
the  publication  of  the  banns.  The  words  of  the  rubric  are 
taken  almost  verbatim  from  the  decree  of  the  Council  (Sess. 
24,  cap.  1),  and  they  seem  to  convey  that  a dispensation 
should  be  given  only  when  there  is  reason  to  apprehend  that 
the  marriage  might  be  maliciously  prevented,  if  delayed  till 
after  the  third  publication ; and  even  then  they  seem  to  re- 
quire that  there  be  one  publication,  or  at  least  that,  after  the 
marriage  has  been  solemnized  in  the  usual  form,  the  publica- 
tion shall  take  place  before  it  is  consummated.  There  are 
other  causes,  however,  which  are  commonly  admitted  as  suffi- 
cient. 1*^.  If  there  be  an  apprehension  of  infamy  or  scandal, 
as  when  the  parties  are  commonly  supposed  to  be  already 
married.  2°.  When  there  is  such  an  enormous  disparity 
between  them,  in  respect  of  age  or  condition,  as  would  expose 
them  to  ridicule.  3^.  When  the  marriage  is  to  put  an  end  to 
concubinage,  which  might  be  continued  during  the  delay. 
4°.  When  a person  in  extremis”  is  about  to  marry  one  with 
whom  he  has  been  living  in  sin.  5°.  When  there  is  danger  in 
delay — e.  g.^  of  change  of  mind  of  one  of  the  parties  to  the 
great  injury  of  the  other,  or  of  serious  dissension  amongst 


ON  THE  SACRAMENT  OP  MATRIMONY. 


5^15  ' 


tlieir  relatives,  etc.  (Car.,  437 ; Lig.,  1005-6.)  It  may  "be 
maintained,  also,  that  a dispensation  can  be  lawfully  granted 
in  consideration  of  a sum  of  money  given  for  charitable  pur- 
poses. (Car.,  436,  3°,  1112.) 

1080.  When  the  banns  are  omitted  by  dispensation  previous 
to  the  marriage,  they  are  seldom  published  after  it,  as  there 
are  generally  good  grounds  for  V)elieving  that  this  would  not 
be  expedient. 

1081.  By  the  ordinarius  in  the  decree,  we  are  to  understand, 
not  only  the  bishop,  but  his  vicar-general,  and  also  the  vicar- 
capitular,  when  the  see  is  vacant.  (Car.,  430 ; Lig.,  1007.) 
When  the  parties  are  from  different  dioceses,  some  are  of 
0})inion  that  the  dispensation  of  one  ordinary  is  enough 
(Sanchez.  Kngler,  ap.  Car.,  432) ; but  it  is  more  commonly 
maintained  that  a dispensation  should  be  obtained  from  each. 
(Car.,  1.  c.  j Gury,  ii,  555.) 


X. 

Has  autem  denuntiationes  Parochus  facere  non  aggrediatur,  nisi  prias 
de  utriusque  contrabeutis  libero  consensu  sibi  bene  constet. 

1082.  The  priest  should  make  himself  certain  that  the 
marriage  has  been  agreed  on  with  the  full  consent  of  the 
parties,  before  he  publishes  the  banns.  This  is  a precaution 
which  ordinary  prudence  would  naturally  suggest.  St. 
Charles  Borromeo  required  the  priest  to  ascertain  from  the 
parties  tliemselves  whether  they  are  willing  to  have  the  banns 
published.  (Ap.  Catal.  in  locum.) 

XI. 

Si  vero  intra  duos  menses  post  factas  denuntiationes  matrimonium 
non  contrahalur,  denuntiationes  repetantur,  nisi  abler  Episcopo 
videatur. 

1083.  If  the  marriage  does  not  take  place  within  two 
months  after  the  publication  of  the  banns,  they  must  be  again 
published,  unless  the  bishop  grants  a dispensation.  This 
rubric  is  sufficiently  explained  by  the  motive  of  the  law.  The 
previous  publication  might  be  forgotten  j and,  besides,  a new 
impediment  might  have  arisen.  Hence  there  is  good  reason 
for  what  is  here  prescribed. 


516 


ON  THE  SACRAMENT  OF  MATRIMONY. 


XIL 

Dennntiationes  autem  fiant  hoc  modo:  inter  Missarum  solemuia  Paro- 
chus  populum  admoneat  in  hanc  sententiam  vnlwaii  sernione: 

Xotum  sit  omnibus  hie  preesentihus,  quod  N.  vir  et  N.  mulier,  ex  tali 
vel  talifamilia  et  Parochia,  Deo  adjuvante,  intendunt  inter  se  contruhere 
matrinionium._  Proinde  adm,oneinus  omnes  et  singulos,  id  si  quis  nove- 
rit  aliquod  consanrjuinitatis,  vel  affinitatis,  aut  cognationis  spirituedis,  vel 
quodvis  aliud  impedimentum  inter  eos  esse,  quod  mairimonium  oontrahen- 
durn  invicem  impediat,  illud  quamprimum  nobis  denuntiare  debeat;  et  hoc 
admonemus  primo  si  fiierit  prima;  ybI  secundo,  si  fuerit  secunda;  vel 
tertio,  si  fuerit  tertia  denuntiatio. 

1084.  The  banns  are  directed  to  be  published,  for  obvious 
reasons,  in  the  vulgar  tongue.  It  does  not  appear  necessary 
to  adhere  strictly  to  tfie  form  here  given;  but  it  would  be 
difficult,  perhaps,  to  find  another  better  or  more  convenient 
for  the  purpose.  It  may  be  translated  thus:  ‘^Be  it  known 
^^to  all  here  present  that  N.  [of  such  a family  and  place,  giving 

the  name  and  place  of  residence)  and  N.  {of  such  a family,  etc., 
giving  the  name  and  residence)  intend,  with  God’s  blessing,  to 
be  united  in  the  holy  state  of  matrimony.  Wherefore,  if  any  of 
you  know  that  there  is  between  them  an  impediment  of  con- 
‘‘  sanguinitv,  affinity,  or  spiritual  relationship,  or  any  other  to 
prevent  their  rnaiTiage,  we  hereby  admonish  each  and  all  of 
‘‘  you  that  you  are  bound  to  make  it  known  to  us  as  soon  as 
possible.  " This  is  the  first  {second  or  third)  publication.”  It 
is  usual  to  give  not  only  the  Christian  and  surnames  of  the 
parties,  but  also  the  names  of  their  parents,  and,  in  case  of  a 
widow,  the  name  of  her  deceased  husband ; but  the  priest 
must  carefully  avoid  the  mention  of  any  name  or  circumstance 
that  would  be  a reproach  to  the  person — as,  e.  g.,  if  he  were 
illeo-itimate.  It  is  enough  in  such  a case  to  give  the  name  by 
which  the  person  is  commonly  known.  (Car.,  398-9.) 

1085.  The  publication  is  to  be  made,  of  course,  in  a clear, 
distinct  voice,  that  it  may  be  heard  by  the  congregation  ; and 
if  there  be  a dispensation  from  one  or  two  publications, 
this  should  be  distinctly  notified,  so  that  those  who  know  of 
anv  impediment  may  understand  their  obligation  of  declaring 
it  without  delay.  (Car.,  400—1 ; Barutf.,  152—3.) 

1 086.  Whoever  knows  of  an  impediment  is  bound,  accord- 
ing to  the  common  opinion  (Lig.,  994,  Car.,  403),  under  pain 
of  mortal  sin,  to  declare  it,  except  in  a few  cases.  If  the 
knowledge  has  been  acquired  under  the  seal  of  confession, 
there  is  no  conceivable  case  in  which  it  can  be  used ; but  of 

course  the  confessor  will  iiiirtruct  the  penitent  who  reveals  it 

% 


ox  THE  SACRAMENT  OF  MATRIMONY. 


517 


in  wliat  be  is  bound  to  do.  (Car.,  408.)  A person  is  also,  ac- 
cording' to  the  common  opinion,  exempt  -from  the  obligation 
of  revealin"',  when  he  knows  it  only  as  one  of  those  profes- 
sional secrets  which  the  public  good  requires  to  be  kept  in- 
violate (ihid.^  409;  Gury,  557);  or  when  he  cannot  reveal  it 
without  serious  injury  to  himself  in  character  or  otherwise. 
[Ibid.,  411  et  seq.) 

1087.  Charity  may  sometimes  require  that  a person  know- 
ing of  the  impediment  should  first  admonish  the  parties  to 
desist  from  the  marriage  or  seek  a dispensation,  and,  if  they 
do  so,  he  is  not  bound  to  go  farther.  (Car.,  415.) 


XIII. 


Moneat  Paroclnis  conjiiges,  ut  ante  benedictionem  sacerdotalem  in 
templo  suscipiendain,  in  eadem  domo  non  cohabitent,  neque  matri- 
inonium  coiisuminent,  nec  etiain  simnl  maneant.  nisi  aliqnibiis  propin- 
qiiis  \’el  aliis  praesentibus;  quae  benedictio  a nullo  alio,  quam  ab  ipso 
Parocbo,  sen  ab  aiio  Sacerdole  de  ipsius  Parochi  V'el  Ordinarii  licentia, 
fieri  debet. 

loss.  The  solemn  nuptial  benediction  which  is  given  in 
the  church  at  Mass  must  be  carefully  distinguished  from  the 
marriage  ceremony,  properly  so  called.  It  usually  follows  it 
immediately,  but  not  always,  as  we  shall  see;  and  when  it  is 
deferred,  the  newly  married  couple  are  exhorted  by  the  Coun- 
cil of  Trent  (Sess.  24,  c.  11),  and  are  here  admonished,  not  to 
live  together  until  they  have  received  it.  If  they  do  so,  some 
maintain  that  they  are  guilty  of  sin  ; birt  it  is  much  more 
probable  that  they  are  not,  for  the  words  onlv  convey  a 
counsel  and  not  a precept.  (Lig.,  984,  Dub.,  2,  Bened.,  Inst. 
XXX,  n.  17.)  This  benediction  can  be  given  only  by  the 
pjirish  priest,  or  a priest  authorized  by  him  or  the  ordinary. 
Any  other  priest,  by  giving  it,  would  incur  suspension  ipso 
facto.  (Con.  Trid , Sess.  24,  cap.  1.) 

XIV. 

Caveat  etiam  Paroclius,  ne,  quando  conjiiges  in  primis  nuptils  bene- 
dictinnem  acceperint,  eos  in  secnndis  benedicat,  sive  inulier,  sive  et'ain 
vir  ad  seciindas  niiptias  ti-anseat.  Sed  nbi  ea  viget  consuetndo,  nt  si 
ninlier  iieinini  inupiain  nnpseiir,  etianisi  vir  abau)  nxoi-em  babnerit, 
mipiiae  benedicantnr,  ea  servanda  est.  Sed  viduje  miptias  non  benedicat, 
etiamsi  ejus  vir  iiunquani  uxorem  duxerit. 

1089.  The  nuptial  benediction  is  not  to  be  given  when 
either  of  the  parties  received  it  in  a previous  marriage;  but 


518 


ON  THE  SACRAMENT  OF  MATRIMONY. 


where  it  is  usual  to  give  it  in  all  cases  in  which  the  female 
was  not  previously  married,  the  custom,  according  to  the 
rubric,  may  still  be  retained.  The  benediction,  from  its  form, 
seems  directed  chiefly  to  the  female,  and  hence,  probably,  the 
custom,  as  well  as  the  sanction  given  to  it.  In  Ireland,  until 
recently,  marriages  were  usually  celebrated  in  private  houses, 
and  the  parties  were  seldom,  if  ever,  required  to  receive  the 
solemn  benediction  in  the  church.  With  us,  therefore,  custom 
can  decide  nothing  regarding  it,  and  we  should  adhere  to  what 
is  prescribed  in  the  Ritual. 

1090.  It  is  to  be  observed  that  the  benediction  is  not  to  be 
withheld  at  the  second  marriage,  unless  it  was  given  at  the 
first  5 and,  therefore,  may  be  given  even  to  a widow  who  did 
not  receive  it  at  her  first  marriage,  whatever  may  have  been 
the  cause  of  the  omission.  (Caval.,  De  Benedict.  Nupt.,  Dec. 
1,  n.  iii.) 

XV. 

Matrimoniam  in  Ecclesia  maxirae  celebrari  decet:  sed  si  domi  eele- 
bratura  fiierit  prsesente  Parocho  et  lestibiis,  sponsi  veniant  ad  Ecclesiani 
benedictionein  accepturi,  et  tunc  caveat  Sacerdos,  ne  iterura  a contrahen- 
tibus  consensum  exigat,  sed  tantuni  beiiedictionem  illis  conferat,  celebrata 
Missa,  ut  infra  dicetur. 

1091.  The  Synod  of  Thurles  has  ordered  that  all  marriages 
in  Ireland  be  celebrated  in  the  church,  unless  in  case  of 
necessity,  or  for  some  grave  reason  to  be  determined  by  the 
bishop.  (De  Mat.,  57.)  When  the  marriage  takes  place  in  the 
church,  the  solemn  nuptial  benediction  should  never  be 
omitted,  unless  in  the  cases  excepted  by  the  rubric  itself. 
When  it  is  celebrated  elsewhere,  it  is  here  prescribed  that  the 
newly  married  pair  should  come  to  the  church  to  receive  the 
benediction,  which  is  to  be  given  at  Mass  in  the  manner 
hereafter  described  ; but  the  priest  must  take  care  not  to  ask 
a renewal  of  the  consent,  or  repeat  any  part  of  the  marriage 
ceremony  which  has  been  already  performed. 

1092.  The  nuptial  benediction  can  be  given  only  in  the 
church,  according  to  a decree  of  the  Sac.  Cong.  ( 17  Ap.,  1649, 
ap.  Caval.,  De  Bened.  Nupt. , Deer,  iv) ; but  this  is  because, 
according  to  another  decree  (13  Jul.,  1630,  ibid.,  Dec.  v),  it 
can  be  given  only  at  JVlass.  Such,  at  least,  is  the  opinion  of 
Cavalieri,  who  further  maintains  that,  if  there  be  an  oratory 
annexed  to  the  house  where  the  marriage  takes  place,  the 
nuptial  benediction  may  be  given  at  Mass  celebrated  there. 


ON  THE  SACRAMENT  OF  MATRIMONY. 


519 


(Sup.  Deer,  iv.,  n.  ii.)  Suppose,  then,  that  a marriage  is,  for 
some  sufficient  reason,  celebrated  in  a private  house,  and  that 
there  is  at  the  same  time  permission  to  say  Mass  there,  it 
would  appear  to  us  that  the  nuptial  benediction  may  and 
should  be  given. 

1093.  According  to  the  decree  already  cited,  the  benediction 
can  be  given  only  at  Mass;  but  Cavalieri  (1.  c.)  is  of  opinion 
that  by  the  dispensation  of  the  bishop  it  may  be  given,  with 
the  usual  prayers  of  the  Missal,  without  Mass,  and,  when 
necessary,  even  extra  ecclesiam  — and  in  some  countries  a 
custom  prevails  of  giving  it  in  this  manner;  and  the  Sac. 
Cong.,  being  consulted  on  the  subject  as  regards  Bavaria, 
replied  that  this  might  be  done.  (1  Sept.,  1838.)  The  same 
is  done  also  in  England.  The  edition  of  the  Roman  Ritual 
recently  published  for  the  use  of  the  English  Mission,  gives 
the  prayers  of  the  benediction  taken  from  the  Missal,  and 
directs  that  these  be  not  omitted  when,  as  is  often  the  case, 
Mass  cannot  be  celebrated. 

1094.  We  think  Ireland  is  circumstanced,  in  this  respect, 
very  much  as  England  is : hence  it  might,  perhaps,  bo 
desirable  to  adopt  the  same  practice  when  Mass  for  the  nup- 
tial benediction  cannot  conveniently  be  said.  But  this  is  a 
point  for  the  determination  of  the  bishops  of  this  country  ; for 
we  do  not  think  a priest  would  be  justified  in  adopting  it  of 
his  own  authority.  (See  Rev.  Theol.,  vol.  iv,  p.  191 ; Dec. 
Authent.,  p.  37.) 


XVI. 

Admoneantur  prasterea  conjuges  nt,  antequam.  coiitrahant,  sua  pec- 
cata  diligeiiitr  confiteantur,  et,  ad  SS.  Eucharistiam,  atque  ad  Matri- 
monii Sacramenlum  siiscipiendiini  pie  accedant,  et  qtiomodo  in  eo  recte 
christiane  coiu’eisari  debeant,  diligenter  instruantur  ex  divina  Scriptnra, 
exemplo  TobiaB  et  Sarae,  verbisque  Angeli  Kapliaelis  eos  edoceniis, 
quam  sancte  conjuges  debeant  convivere. 

109d.  Marriage,  being  one  of  the  ^‘sacramenta  vivorum,’^ 
must  l)e  received  in  the  state  of  grace.  A person  conscious 
of  mortal  sin  must,  therefore,  according  to  all,  either  go  to 
confession,  or  make  an  act  of  perfect  contrition  before  he 
receives  it.  Some  theologians  maintain  the  necessity,  in  this 
case,  of  previous  confession  ; but,  according  to  the  more 
probable  opinion,  it  is  siiHicient  to  have  contrition,  since  there 
is  no  precept  requiring  confession  before  any  of  the  .'-acra- 
“ menta  vivorum  ” except  the  Blessed  Eucharist.  (Lig.,  lib.  G, 


520 


ON  THE  SACRAMENT  OF  MATRIMONY. 


n.  86.)  The  Council  of  Trent,  indeed,  exhorts  (Sess.  24,  c. 
1),  and  the  Ritual,  in  nearly  the  same  words,  here  admon- 
ishes, those  who  are  about  to  get  married  to  go  to  confession 
and  communion  before  the  marriage  is  contracted,  or,  at 
least,  as  the  Council  adds  (1.  c.),  three  daj's  before  it  is  con- 
summated ; but  this  is  not  regarded  as  imposing  a strict 
obligation.  (Barutf.,  181;  Car.,  63,  2°^)  Although  confes- 
sion is  not  strictly  required,  it  is,  nevertheless,  to  be  most 
earnestly  recoinmended  by  the  pastor,  not  only  as  the  most 
secure  means  of  recovering  the  state  of  grace  for  those  who 
may  be  conscious  of  mortal  sin,  but  as  a most  useful  prepara- 
tion for  all,  and  a means  in  some  cases  morally  necessary  in 
order  to  detect  certain  occult  impediments,  which  would 
otherwise  be  unknowm,  and  might  afterwards  come  to  light 
with  most  disastrous  consequences.  -Hence,  in  some  places 
confession  is  strictly  required  by  a special  law,  or  custom 
having  the  force  of  law,  and  the  parish  priest  should  not 
assist  at  the  marriage  until  he  is  satisfied  that  the  parties  have 
confessed.  This  is  the  case  in  France.  (Oar.,  62,  3°  ; Bouv., 
c.  i,  art.  2,  § ii,  Queer.  1^.)  We  believe  the  same  is  the  case 
in  Ireland,  but  there  may  be  circumstances  in  which  it  wmuld 
not  be  expedient  to  insist  on  it;  and  in  these  the  bishop  should 
be  consulted.  (Car.,  63  ; Bouv.,  1.  c. ; Gury,  ii,  585.)  It  is 
very  important  that  the  confession  be  not  delayed  till  all 
things  are  prepared  for  the  marriage,  for  it  may  happen,  as 
we  have  said,  that  an  impediment  would  then  become  known, 
so  that  it  would  be  necessary  to  break  off  the  marriage,  or 
obtain  a dispensation  ; and  it  is  easy  to  see  the  embarrassment 
that  would  be  caused  if  the  confession,  in  such  a case,  were 
deferred  till  the  very  day  of  the  marriage.  For  the  duty  of 
the  confessor  in  this  most  perplexing  case,  see  St.  Liguori 
(lib.  6,  De  Poenit.,  n.  613). 

1096.  The  communion  here  recommended  is  admitted  by 
all  to  be  only  of  counsel,  and  is  nowhere  strictly  required. 

It  is  manifestly  of  great  importance  that  those  who  are 
about  to  enter  the  marriage  state  should  be  well  instructed 
in  its  duties.  The  Ritual  here  recommends  the  pastor  to 
place  before  them  the  example  of  Tobias  and  Sara,  who 
were  taught  by  the  Angel  Raphael  the  holiness  in  which 
they  should  live  together.  Other  pass  ige.5  of  the  Sacred 
Scripture  also,  especially  from  the  Epistles  of  .St.  Paul  (1 
Cor.  vii ; 1 Thess.  iv ; Ephes.  v,  22),  are  very  appropriate. 
In  an  instruction  on  this  subject,  the  priest  must  be  very 


ON  THE  SACRAMENT  OF  MATRIMONY. 


521 


careful  in  the  selection  of  his  language,  so  as  to  avoid  as  far 
as  possible  any  expression  that  might  offend  against  modesty, 
or  convey  a knowledge  of  sins  which  might  be  to  some  an 
occasion  of  committing  them.  Many  Rituals  contain  a care- 
fully witten  instruction  to  be  addressed  to  the  contracting 
parties  immediately  before  marriage,  and  another  • to  be 
addressed  to  them  after  the  nuptial  benediction  at  the  time 
prescribed  in  the  rubric  ; but  the  pastor  should  take  occasion, 
in  some  of  his  instructions  to  the  faithful  generally,  to  explain 
to  them  the  holiness  of  the  married  state,  and  the  dispositions 
required  in  those  who  enter  it.  Such  an  explanation  would 
save  himself  a great  deal  of  trouble,  and  probably  also 
prevent  many  unhappy  marriages. 

XVII. 

Postremo  meminerint  Parochi,  a Dominica  I Adventus,  usque  ad 
diem  Epiphaniae,  et  a Feria  IV  Cinerum,  usque  ad  Octavam  Paschae 
inclusive,  solemnitates  nuptiarum  prohibitas  esse,  ut  nuptias  benedicere, 
sponsam  traducere,  nuptialia  celebrare  convivia,  matrimonium  autem 
Omni  tempore  contrabi  potest.  Nnptiae  vero  qua  decet  modestia  et 
honestate  fiaiit : sancta  enim  res  est  matrimonium,  sancteque  tractandum. 

1097.  It  was  forbidden  from  the  very  earliest  times,  as 
is  shown  by  Catal.,  to  solemnize  marriage  during  Lent  or 
Advent.  In  some  churches  it  was  forbidden  at  other  times 
also,  which  were  set  apart  for  penance.  The  Council  of 
Trent  renewed  these  ancient  prohibitions,  and  ordered  them 
to  be  everywhere  observed  during  the  times  here  specified 
in  the  rubric ; i.  e.,  from  the  first  Sunday  of  Advent  till  the 
Epiphany,  and  from  Ash-Wednesday  till  the  Sunday  after 
Easter,  or  Low  Sunday,  the  days  mentioned  being  included. 

1098.  Some  theologians  maintain  that  the  prohibition  ex- 
tends not  only  to  the  solemnities  of  marriages,  but  to  the 
contract  itself,  or  at  least  to  its  consummation  : and  there  can 
be  no  doubt  that  the  intention  of  the  Church  was  to  withdraw 
the  people  at  those  times  from  sensual  pleasures,  that  they 
might  more  fully  devote  themselves  to  exercises  of  piety. 
(Catal.  in  locum,  S.  Thom.,  St.  Anton,  ap.  St.  Lig.,  984.) 
It  is  evident,  however,  from  the  present  rubric  that  by  the 
common  law  the  mere  contract  is  not  prohibited — neither  is 
its  consummation,  as  is  also  quite  certain  (^Bened.  XIV,  Inst. 
Ixxx,  14,  17  j St.  Lig.,  1.  c.),  but  all  nuptial  solemnities 
are  prohibited  j and  by  these  we  are  to  understand,  as  the 
rubric  itself  here  explains,  the  giving  of  the  solemn  nuptial 


522 


ON  THE  SACRAMENT  OF  MATRIMONY. 


benediction — not  the  benediction,  Ego  vos  conjungo,^^  etc. ; 
the  solemn  escort  of  the  bride  to  the  house  of  the  husband — 
not  the  bringing  her  home  privately  and  without  pomp  j and 
nuptial  banqueting  and  festivities — not  a moderate  entertain- 
ment. (St.  Lig.,  1.  c.) 

1099.  But  it  may  happen  that  in  certain  countries,  by 
a particular  law  or  interpretation  of  the  decree  having  by 
custom  the  force  of  law,  marriage  itself  is  prohibited  during 
these  times,  so  that  it  cannot  be  celebrated  even  without  pomp 
or  solemnity,  unless  by  dispensation  from  the  bishop.  (Bened. 
XIV,  1.  c.,  n.  14 ; Car.,  921.)  This  is  the  case  in  France  and 
several  parts  of  Germany  (Car.,  1.  c.),  and  we  believe  the 
same  is  the  case  in  every  part  of  Ireland.  It  is  to  be 
observed  that  when  in  these  countries  a dispensation  is 
granted  for  the  celebration  of  marriage,  it  is  not  supposed  to 
include  a permission  to  give  the  solemn  nuptial  benediction. 
(Bened.  XIV,  1.  c.,  n.  12.)  This  benediction,  and  the 
Mass  “ pro  sponso  et  sponsa,”  or  even  a commemoration  of  it, 
are  prohibited  altogether  during  Lent  and  Advent,  as  has 
been  declared  by  the  Sac.  Con.  (Aug.  31,  1839)  ; and  it  is 
doubtful  whether  a bishop  is  competent  to  dispense  in  this 
prohibition.  (Bened.  XIV,  1.  c.,  n.  15.) 

1100.  When  the  parties  are  from  different  dioceses  it  is 
enough  in  this  case,  according  to  Caerem.  (1.  c.),  to  have  a 
dispensation  from  the  ordinary  of  the  diocese  in  which  the 
marriage  takes  place. 

' XVIII. 

Quse  omnia  fere  ex  sacri  Concilii  Tridentini  decretis  desumpta,  et  item 
alia,  qusB  ibi  de  matriinonio  rite  coutrahendo  praecipmntur.  sunt  diligen- 
ter  servanda. 

1101.  It  has  been  already  observed  that  some  of  the  pre- 
ceding rubrics  are  taken  verbatim  from  the  decrees  of  the 
Council  of  Trent  j others  are  taken  from  them  in  substance, 
but  are  more  precise  and  enter  into  details.  This  is  here 
stated  in  general  terms  by  the  Ritual  itself,  which  orders 
that  not  only  the  preceding  rubrics,  but  whatever  else  has 
been  prescribed  by  the  Council  concerning  marriage,  be 
carefully  observed. 


ON  THE  SACRAMENT  OF  MATRIMONY. 


523 


CHAPTER  11. 

RITE  OF  CELEBRATING  THE  SACRAMENT  OF  MATRIMONY : 
^^RITUS  CELEBRANDI  MATRIMONII  SACRAMENTUM.” 

' 1102.  Before  treating  of  the  ceremonies  to  be  observed  in 

the  celebration  of  marriage,  it  is  necessary  to  premise  that 
the  Council  of  Trent  expresses  an  earnest  desire  (veliementer 
optat)  that,  in  addition  to  what  it  has  itself  prescribed  in  this 
matter,  the  laudable  rites  and  customs  of  particular  countries 
or  provinces  shall  be  also  retained.  (Sess.  24,  cap.  i,  De  Ref. 
Mat.)  The  Roman  Ritual  also  mentions  this,  as  we  shall 
see.  In  the  present  chapter,  therefore,  we  cannot  confine 
ourselves  to  the  rubrics  of  the  Roman  Ritual,  but  must  also 
dwell  on  the  ceremonies  usually  observed  at  marriages  in 
these  countries. 


I. 

Parochus  igitur  matrimonium  celebraturus,  publicationibus  factig 
tribus  diebus  Festis,  ut  dictum  est,  si  nullum  obstet  legitimum  impedi- 
mentum,  in  Ecclesia  Superpelliceo  et  alba  Stola  indutus,  adhibito  uno 
saltern  Clerico  Superpelliceo  pariter  induto,  qui  Librum  et  vas  Aquae 
Benedictae  cum  aspersorio  deferat,  coram  tribus  aut  duobus  testibus, 
virum  et  mulierem,  quos  parentum  vel  propinquorum  suorum  praesentia 
cohonestari  decet,  de  consensu  in  matrimonium  interroget  utrumque 
singillatim  in  hunc  modum,  vulgari  sermone  : 

N.,  vis  accipere  N.  hie  prwsentem,  in  tuam  legitimam  uxoreviif  juxta 
ritum  Sanctee  Matris  Ecclesice? 

Respondeat  Sponsus : Volo. 

Mox  Sacerdos  Sponsam  interroget : N.,  vis  accipere  N.  hie  preesentem, 
in  tmim  legitimum  maritum,  juxta  ritum  Sanctee  Matris  Ecclesice  f 

Respondeat:  Volo. 

1103.  All  that  has  been  prescribed  in  the  preceding  rubrics 
regarding  the  publication  of  the  banns,  etc.,  etc.,  having 
been  duly  complied  with,  the  parties  present  themselves  in 
the  church  on  the  day  fixed  for  the  marriage.  They  should 
be  accompanied  by  their  parents  or  relatives  : at  least  this  is 
very  becoming,  and  should  be  required,  if  circumstances  do 
not  render  it  impossible. 

1104.  An  altar  should  be  prepared  for  the  celebration  of  • 
IMass,  at  which  the  nuptial  benediction,  unless  prohibited  by 
the  rubric,  is  to  be  given  j and  two  seats  or  priedieus 


524 


ON  THE  SACRAMENT  OF  MATRIMONY. 


should  be  prepared  for  the  bride  and  bridegroom,  or  at  least 
convenient  places  assigned  them,  near  to  aud  in  front  of  the 
altar,  but  not  within  the  sanctuary.  According  to  many 
ancient  Rituals,  they  should  present  themselves  before  the 
priest  at  the  door  of  the  church,  w'here  the  mutual  consent 
was  expressed,  and  the  ceremony,  as  far  as  the  nuptial  Mass, 
was  performed.  'I hey  were  then  introduced. into  the  church, 
where  they  assisted  at  Mass,  and  received  the  solemn  nuptial 
benediction.  (Mart.,  lib.  1,  cap.  ix,  art.  iii,  nn.  vi,  viii.) 

1105.  The  priest  should  vest  in  surplice  and  white  stole, 
according  to  the  rubric  j but,  if  he  is  to  celebrate  Mass,  the 
Rituals  of  many  dioceses  permit  him  to  vest  in  amice,  alb, 
cincture,  and  stole  (De  H.,  p,  6,  n.  38,  iv);  the  chasuble 
and  maniple  being  in  this  case  placed  on  the  Gospel  side  of 
the  altar.  He  issues  from  the  sacristy,  preceded  by  two 
clerks,  or  at  least  one,  vested  in  surplice,  and  carrying  the 
vase  of  holy  water,  with  the  aspersory  and  the  Ritual. 
Arrived  at  the  foot  of  the  altar,  he  kneels  and  says  a short 
prayer,  having  given  his  cap  to  the  clerk  on  his  right,  who 
holds  the  Ritual,  or,  if  there  be  only  one  clerk,  having  him- 
self put  it  aside  on  the  altar  step.  He  then  rises  up,  and 
having  made  the  due  reverence  at  the  foot  of  the  altar, 
advances,  accompanied  by  the  clerks,  to  where  the  bride  and 
bridegroom  are  standing,  the  former  being  on  the  left.  The 
priest  then  interrogates  them  in  the  vulgar  tongue,  in  presence 
of  the  witnesses,  who  should  be  looking  on  and  listening. 
He  puts  the  question  as  it  is  given  in  the  ritual : N.  Wilt 
thou  tahe,  etc.,  first  to  the  bridegroom  and  then  to  the  bride. 

1106.  It  is  usual  to  mention  not  only  the  Christian  name, 
but  the  surname  of  each,  though  the  words,  hie  prcesenterriy' — 

here  present,”  leave  no  doubt  about  the  person.  Any  words, 
or  even  any  sign,  which  clearly  expresses  the  consent  of  the 
parties,  would  be  sufficient ; and  hence,  if  one  or  both  of 
them  be  mute,  any  sign  or  writing  expressive  of  consent  may 
be  admitted ; but  it  is  right,  except  in  such  cases  of  necessity, 
to  insist  on  an  adherence  to  the  form  given  in  the  Ritual. 
The  consent  of  the  parties  may  be  expressed  even  by  proxy, 
as  is  here  stated  in  the  rubric ; but  marriages  by  proxy,  unless 
in  the  case  of  princes,  are  very  rare,  and  should  not  be 
permitted  by  a priest  of  his  own  authority.  (Catal.,  n.  x j 
Car.,  139.)  For  the  validity  of  a marriage  by  proxy,  it  is 
necessary,  1 , that  the  procurator  be  specially  commissioned 
for  the  purpose  j 2°,  that  he  do  not  depart  from  the  terms  of 


ON  THE  SACEAMENT  OF  MATRIMONY. 


525 


tis  commission  ; 3°,  that  the  person  for  whom  he  acts  shall 
not  have  revoked  his  consent  before  the  celebration  of  the 
marriage.  These  conditions  are  expressly  required  by  the 
canon  law.  (Oar.,  141  et  seq.)  In  expressing  the  consent, 
the  procurator  should  use  words  which  clearly  convey  that  he 
is  speaking  and  acting  in  the  name  and  on  behalf  of  another. 

1107.  In  the  Ritual,  which  has  been  from  time  immemorial 
used  in  Ireland  and  England,  immediately  after  the  inter- 
rogations, when  the  bride  has  expressed  her  consent,  saying,  “ I 

will,”  we  have  the  following  rubric : ‘‘  JDeinde  detur  fcemina  a 
^^patre  suo  vel  ah  amicis  suis  ; quce  si  puella  sit,  discoopertam 
hdbeat  manum^  si  vidua,  tectam  ; et  vir  earn  recipiat  in  Dei 
^^fide  et  sua  servandam  et  temat  earn  per  manum  dexteram  in 
manu  sud  dexter d / et  ad  liunc  modum,  docente  Sacerdote,  det 
“ ei  jidem  per  verhum  de  prcesenti  dicens : 

I,  N.,  take  thee,  N.,  to  my  wedded  wife,  to  have  and  to 
hold  from  this  day  forward,  for  bettet,  for  worse,  for  richer,  for 
“ poorer,  in  sickness  and  in  health,  till  death  do  us  part,  if  holy 
Church  will  it  permit ; and  thereto  I plight  thee  my  troth. 
“ Max  hnanum  retrahendo,  iterumque  jungendo,  dicat  mulier, 
docente  Sacerdote : 

I,  N.,  take  thee,  N.,  to  my  wedded  husband,  to  have  and 
to  hold  from  this  day  forward,  for  better,  for  worse,  for  richer, 
for  poorer,  in  sickness  and  in  health,  till  death  do  us  part,  if 
holy  Church  will  it  permit  j and  thereto  I plight  thee  my 
troth.” 

As  soon  then  as  the  bride  has  said,  “ I will,”  she  should, 
according  to  this  rubric,  be  ‘‘  given  away,”  as  it  is  called,  by 
her  father  or  some  of  her  friends.  This  may  be  done  by 
taking  her  right  hand  and  placing  it  in  that  of  the  bridegroom, 
as  Raguel  gave  his  daughter  in  marriage  to  Tobias.  (Tob. 
vii.)  If  a widow,  she  should  have  on  a glove  j if  not,  her 
hand  should  be  uncovered. 

1108.  This  distinction  between  the  first  and  second  mar- 
riage's, of  presenting  the  hand  naked  in  the  former  and 
covered  in  the  latter,  is  mentioned  in  many  very  ancient 
Rituals.  Catalan!  cites  one  about  six  hundred  years  old,  in 
which  it  is  ordered  to  be  observed.  (De  Mat.,  tit.  vii,  cap.  ii, 
§ 2,  n.  2.)  Baruff’.,  however,  says : Decet  manus  esse  nudas  et 

absque  chirothecis,”  without  making  any  distinction.  (In  loc., 
D.  37.) 

1109.  The  bridegroom,  having  thus  taken  her  right  hand, 
repeats  after  the  priest  the  words  given  above,  ‘‘  I,  N.,  take 


526 


ON  THE  SACRAMENT  OF  MATRIMONY. 


thee,”  etc.  Both  then  withdraw  their  hands  for  an  instant, 
and  she  takes  his  right  hand  in  the  same  manner,  and  says, 
N.,  take,”  etc. 

1110.  We  have  then  the  following  rubric:  Bata  sic 
utrimque  fides  junctisque  dexteris  dicat  sacerdos : Ego  con- 

^‘jungo  VOS  in  matrimonium,  in  nomine  Patris  et  Filii  et 
Spiritus  Sancti.  Amen.  Et  mox  aspergat  eos  aqua  henedictdJ’ 

1111.  The  Ritual  does  not  state  at  what  time  the  parties 
should  kneel,  or  even  that  they  should  kneel  at  all,  nor  is  the 
question  decided  by  any  uniform  practice  j it  is  usual,  how- 
ever, to  require  them  to  kneel  before  the  priest  pronounces 
the  words,  Ego  conjungo  vos,”  etc.  We  think  they  may 
be  conveniently  required  to  kneel  after  the  bride  has  been 

given  away”  and  the  bridegroom  has  taken  her  by  the 
right  hand,  so  as  to  say,  on  their  knees,  I,  N.,  take  thee,” 
etc.  At  all  events,  it  is  right  that  they  should  be  on  their 
knees  when  the  priest  pronounces  the  words,  Ego  conjungo 
VOS,”  etc.,  and  sprinkles  them  with  holy  water ; and  there 
is  no  reason  why  they  should  not  remain  in  this  posture,  as 
they  commonly  do,  until  the  end  of  the  ceremony.  The 
priest,  saying  the  words,  in  nomine  Patris’'  etc.,  makes  the 
sign  of  the  cross  over  their  hands  (BarufF.,  1.  c.  39) ; then, 
taking  the  aspersory,  which  is  presented  to  him  by  the  clerk, 
he  sprinkles  them  with  holy  water. 


II- 

Mutuo  igitur  contrahentium  consensu  intellecto,  Sacerdos  jubeat  eos 
invicem  jungere  dexteras,  dicens:  Ego  conjungo  vos  in  matrimonium,  in 
nomine  Patris  (Ji  et  Filii  et  Spiritus  Sancti.  Amen. 

1112.  All  that  is  prescribed  in  this  rubric  is  carried  out  in 
the  ceremony  above  described.  We  may  observe  that  there 
is  a great  variety  in  the  ceremonies  prescribed  in  different 
places  for  the  joining  of  right  hands,  etc.  In  Belgium  the 
priest  envelops  their  hands  with  the  extremities  of  his  stole. 
(De  Herdt,  pt.  6,  No.  38,  vii.)  In  the  Ritual  of  Rheims  and 
in  that  of  Milan,  he  is  directed  to  place  the  extremities  of  his 
stole  over  their  hands  in  the  form  of  a cross.  (Catah,  1.  c.  ii.) 

1113.  Instead  of  the  words,  ‘‘Ego  conjungo,”  etc.,  the 
priest  is  permitted  by  the  present  rubric  to  use  any  other 
words  sanctioned  by  the  received  Ritual  of  the  province. 
This  latitude  is  expressly  permitted  by  the  Council  of  Trent, 
and  in  the  very  words  here  given  by  the  rubric.  It  is  certain 


ON  THE  SACRAMENT  OF  MATRIMONY. 


527 


that  in  many  ancient  Rituals  the  form,  “ Ego  vos  conjungo/^ 
etc.,  is  not  mentioned.  Catalani  cites  one  of  the  church  of 
Rouen,  in  which  it  is  given,  but  not  earlier  than  the  thirteenth 
century.  Martene  says  it  was  quite  unknown  in  the  early 
Church.  (De  Ant.  Eccl.  Rit.,  lib.  1,  cap.  ix,  art.  3,  n.  vi.) 
From  this  it  is  inferred,  with  great  probability,  that  these 
words  do  not  constitute  the  form  of  the  sacrament.  (Oar.,  79  et 
110.)  At  all  events  it  is  now  almost  universally  admitted 
that  the  priest  is  not  the  minister  of  the  sacrament,  the  con- 
tract itself  between  Christians  being,  by  the  institution  of 
Christ,  a true  sacrament.  This  seems  to  have  been  at  alJ 
times  the  common  opinion  of  theologians,  except  at  most  in 
France  and  Germany  (Bellarmin,  De  Mat.,  cap.  7 j St.  Lig., 
897);  and  it  appears  to  us  that  at  present  it  can  hardly  be 
doubted,  since  it  is  clearly  conveyed  in  the  Brief  of  the 
present  Pope,  Pius  IX,  to  the  King  of  Sardinia,  which  sets 
forth  as  the  doctrine  of  the  Catholic  Church  : Sacramentum 
d^  ipsa  Matrimonii  essentia  esse,  ita  ut  unio  conjugalis  inter 
Christianos  non  sit  legitima,  nisi  in  Matrimonii  Sacramento, 
“ extra  quod  mcrus  concubinatus  tantum  imemturP 

1114.  Since  the  words,  ‘^Ego  vos  conjungo,’^  etc.,  are  used 
in  these  countries  and  given  in  all  our  Rituals,  the  priest  is  not 
at  liberty  to  omit  them,  or  to  substitute  others  for  them.  - i 


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